Textualism and Corporate Personhood

By Mike Dorf


Give Chief Justice Roberts credit for wit.  In last week's unanimous opinion for the Court in FCC v. AT&T, he artfully rejected AT&T's argument that because a corporation is a "person" under the Freedom of Information Act, the Act's exemptions for "personal privacy" necessarily attach to corporations no less than to natural persons.  Not so, the Chief Justice said:The adjectival form of a word need not take its meaning from the noun form.  He gave the examples of "crab" and "crabby," "corn" and "corny," and "crank" and "cranky."  After some further exegesis of the statute, he then concluded his opinion thus: "The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations.  We trust that AT&T will not take it personally."

Although I found the opinion in FCC V. AT&T generally satisfactory (and admirably succinct), it is nonetheless a bit too textualist for my taste.  The Court's chief focus is on whether, at the time of enactment of the relevant statutory language, "personal privacy" might have been meant to refer to corporations.  To his credit, the Chief Justice explains how the term "personal" is often used in opposition to business-related, thus undermining the position AT&T took.  His is a sensible explanation of the text's meaning.  Still, a  fuller treatment of the subject would have devoted more attention to whether corporations have interests sufficiently like those of natural persons to warrant interpreting "personal privacy" to encompass those corporate interests.  I think--given the overall context of the other FOIA exceptions--that the result would not have changed, but I  worry that in another case this eschewal of dynamic and purposive statutory interpretation could lead to unwarranted results.

For now, I want to riff a little bit on a hypothetical implication of the Court's textualism, if applied in the constitutional context.  Consider Citizens United and other cases holding that corporations may challenge laws allegedly infringing free speech.  Elsewhere, I have defended that proposition (though not necessarily
the result in CU) on the ground that the First Amendment does not protect the freedom of particular speakers, but the "freedom of speech."  (I am not the first to make this argument.)

If that's a  good argument, then it's notable that it only works for federal laws and policies that allegedly infringe freedom of speech, for the First Amendment only applies of its own force to the federal government.  States are bound by the First Amendment because the Fourteenth Amendment "incorporates" it, but incorporation occurs through language that specifically refers to "person[s]."  State laws that unduly restrict free speech are thought to deprive "person[s]" of liberty without due process.

But whereas the Dictionary Act and other statutory provisions define "person" to include corporations so far as Acts of Congress are concerned, no parallel constitutional provision defines corporations as persons for constitutional purposes.  This fact gives rise to a potential asymmetry: Corporations automatically have the ability to raise First Amendment claims against the federal government (because its protection doesn't turn on personhood) but they only should have that ability against the states if they are deemed constitutional persons.

Thus, for purposes of testing the constitutionality of federal laws under the First Amendment, corporate personhood is irrelevant, whereas free speech claims against the states appear necessarily to implicate
the line of cases going back to the Dartmouth College case and the Santa Clara County case over the scope of the protection that the Constitution affords to corporations.  For my money, that issue should be addressed functionally.  Yet the Court's textualist move in FCC v. AT&T subordinates functional analysis to textualism.

To be clear, I have no illusions that the Supreme Court is about to hold that corporations lack free speech rights against the states.  I write here only to argue that the methodology of FCC v. AT&T, charming
as it is, has its limits.