Can Corporations Blush From Embarrassment?

AT&T has asked the Supreme Court to equate a corporation's privacy concerns with those of the individual.


It may be warranted to ascribe to corporations some of the rights of personhood that are undoubtedly encompassed in the 14th Amendment’s guarantee of equal protection to all “persons.” Arbitrary and unequal legislation against corporations or against some corporations would certainly violate the rights of corporations. It is worth remembering that corporations can, after all, be made up of as few as one or two people. In this sense, corporations have long been regarded as “artificial persons.” But to suggest that a fair reading of the 14th Amendment imagines that a state-created legal entity is entitled to the same protections as an individual person is to turn the 14th Amendment on its head.

The AT&T case demonstrates the fallacy of treating corporations as natural persons. The interest in privacy of an individual differs vastly from that of a corporation. The “personal privacy” exemption in 7(c) was not created to protect individuals from legal liability for wrongdoing, or even to protect against disclosures that might have adverse financial consequences for an individual. The exemption is, at its core, an effort to balance the value of transparency with the right of every individual to live with a reasonable expectation of some privacy.

The shame and embarrassment that human beings feel when private information is publicly disclosed derives from our sense of human dignity. This cannot be measured against the “public embarrassment” of a corporation, for which harm can be measured only in the potential blow to the financial stability or legal liability of a corporate entity. Corporations don’t have dignity or feelings of any kind. Corporate officers may have feelings, but exemption 6 already protects against the release of individuals’ personnel or medical records. And the corporate bottom line is protected by exemption 4, which protects against the disclosure of corporate “trade secrets.”

Moreover, since it was enacted in 1966, the FOIA has proved to be a critical tool in promoting governmental transparency — a key component of a functioning democracy. The price for private corporations like AT&T of doing lucrative business with the government — as AT&T did with the E-rate program — is that information generated in connection with that government work may be subject to public disclosure through the FOIA.

What AT&T seeks is yet another vastly expanded definition of corporate personhood. Such a definition wouldn’t protect just AT&T from disclosures sought by ComTel (a trade organization that includes some of AT&T’s competitors); it would also protect hundreds of corporations that do business with the government from disclosures sought by individuals and organizations seeking to monitor the integrity and legality of our government’s relationship with corporations.

It was good to hear the justices at oral argument in the case — including some of the most conservative justices — respond skeptically (pdf) to AT&T’s privacy argument. Chief Justice John Roberts’ dismantling of the 3rd Circuit Court’s “grammar logic” was especially gratifying. The latest effort to expand corporate personhood may fail before the Supreme Court, but it is apparent that Citizens United has emboldened a corporate community that is prepared to stretch the boundaries of corporate personhood to the limit.

Sherrilyn A. Ifill, who teaches at the law school of the University of Maryland, writes about the law for The Root.