Journalism in the Public Interest

As Citizens United Turns 1, U.S. Supreme Court Considers Corporate Personhood Again

The Supreme Court heard oral arguments today on a case between AT&T and the Federal Communications Commission, revisiting the legal concept of “corporate personhood” last strengthened under the court’s Citizen United ruling on corporate campaign spending. (That controversial ruling has its first anniversary this week.)

The case before the court focuses on whether AT&T, a corporation, can stop government agencies from releasing information obtained for law enforcement purposes by claiming such disclosures would violate the company’s “personal privacy.”

The phrase is included as an exemption in the text of the Freedom of Information Act, a federal law that instructs government agencies on what information to make public. As the SCOTUS blog notes, however, there’s no specific definition of the words “personal privacy,” so it’s not clear whether a corporation can qualify as a person in this case.

The lower court, the Third Circuit in Philadelphia, sided with AT&T in an earlier ruling, stating that corporations are capable of being embarrassed, harassed and stigmatized by public disclosures. If the Supreme Court agrees, it could limit how much information federal agencies are able to release about the companies they've investigated. (Here's Bloomberg, with more background.)

In the appeal before the high court, a review of the briefs in support of each side shows a number of news organizations and government openness and watchdog groups backing up the FCC. Major business groups—namely the National Association of Manufacturers, the Chamber of Commerce and the Business Roundtable—have filed briefs in support of AT&T.

Justice Elena Kagan, it’s worth noting, was solicitor general at the time when the FCC and U.S. government petitioned the Supreme Court to review the AT&T case. She has had to recuse herself from considering it, and should the court split 4-4 without her, the lower court’s decision would stand.

Kagan’s successor as solicitor general, Neal Katyal, has argued that “a corporation itself can no more be embarrassed, harassed, or stigmatized than a stone.”

According to early reports on the day’s proceedings, the high court showed signs that it agreed. A transcript [PDF] of the oral arguments has also been made available.

Jon Claerbout

Jan. 19, 2011, 2:46 p.m.

This is really important.  Transparency is much stronger than regulation.

If corporations are considered to be individuals, why can’t we send them to prison for the many crimes they commit?

moisy shopper m.d

Jan. 19, 2011, 5:09 p.m.

If I own shares of a corporation can I, as an individual, find out where and how much of corporate money goes to which organizations?  What level of management has access to such information and why not the share holder?

Common Sense says it was never a person, it was never debated, it was notes written during another case that has inverted the 14th amendment . A corporation should always be subordinate to the people . Since they have got this far,let me know what sex it is , I’ll marry one .

Corporate Person

Jan. 19, 2011, 6:12 p.m.

Actually it is because corporations have legal standing—“personhood” is the agit-prop term—that they can be held responsible for misdeeds in CIVIL court.  Without “corporate personhood” there could be no lending, no insurance, no contracts.  To abolish “corporate personhood” is to abolish all but the most rudimentry forms of capitalism. 

It is deeply embarassing to watch so many allegedly educated persons babble about this with such paucity of understanding.

“Corporate Person” is obviously correct. The problem is not corporate personhood but how it was inturpreted by the likes of Samuel Alieto and the other Republican appointees who are there solely to protect their boss’ interests and have no interest in the public good for more than their lifetimes.

Corporations must be held to be static, and the board memebers and controlling parties must be held civilly and criminally responsible for the actions of the corporations.

If that single simple rule were to be enforced, this country would change direction in less than 2 weeks.

“It is deeply embarassing to watch so many allegedly educated persons babble about this with such paucity of understanding.”

Perhaps our learned fellow could describe for us then the limits of corporate person hood and further, exactly how a corporate person-hood is differentiated from a person?

As others have pointed out to assume that a corporate person-hood (CP) should be considered as a an actual person without limitation leads to some absurdities:

To wit:
- If the draft were to return would CP be obliged to serve? (eg. by surrendering all profit to the state for duration of service)

- I have heard that in some states, a failure to assist a person in emergency is a crime.  Would CP’s now also carry this obligation?

- Is it a crime for a board of directors to vote to dissolve a CP (eg. Assisted suicide).

- Do CP’s get to Vote in elections for public office?

- Can a CP run for and be elected to public office?

Well the list could go on for a very long time.  I beleive that CP’s exist for a specific purpose to facilitate commerce.  Their list of “rights” should be strictly enumerated and any rights not enumerated should be void.

There are already trade secrete laws and exemptions, so to claim personal privacy is a huge over-step IMHO.  If I were on the team that suggested it I would be embarrassed beyond belief.

Nissim Sasson

Jan. 19, 2011, 7:30 p.m.

Truebee, I agree 100%

No, I am not a legal scholar, so excuse my PAUCITY of understanding “Corporate Person,” but isn’t the commercial code precisely set up so as to limit the universe of “personhood” of a business entity to the commercial realm so that there is no confusion for the rights of real persons versus the obligations of business entities.

Seems that trolls take on any number of AKA’s to play their tune. Get their jollies at others expense. One can tell when they write, for they don’t know how to be civil without their little bit of put down.

Commenter Corporate Person is NOT correct to assert that you would necessarily have limited forms of free enterprise without the corporate form.  Indeed it’s a preposterous assertion.  There are other formal types of business that could (and have been and still are) just as easily be used for insurance, contracts & so on (partnership and proprietorship forms).  The only differences would be that you would be able to hold some actual person accountable and Wall Street wouldn’t have all that hidden bogus value to inflate.

It’s farcical that corporations have become synonymous with free enterprise when, in fact, the corporate form inhibits free enterprise (because key principles of free enterprise is equal access to markets and the possibility of information symmetry between seller and buyer AS WELL AS governmental policies restricting oligopoly or monopoly, ANTI-competitive situations that dominate our economy today; but the almost complete lack of knowledge among Americans about what free enterprise actually means is another discussion).

At the time of the founding of the United States, the corporate form was illegal.  THAT was because the main grievance of the colonists was that unaccountable corporations were being granted special privileges by the (then British) government.  In point of fact, THAT was the real complaint behind the Boston Tea Party.  Colonists were prohibited from dealing in tea, importing and selling tea, because the (then British) government had granted exclusive rights to unaccountable corporations.  You know, sort of like preferred and exclusive ( and even taxpayer advantaged) contracts to Boeing, Lockheed, Halliburton and so on.  You have to be blind to imagine that we have a free enterprise system in the US, except for smaller local businesses and a few larger exceptions.  What we have in the US is not free enterprise.  The US economic form is most accurately described as corporate socialism or fascism.  This system of preferential tightly interlocking interests between unaccountable corporations and the political system is what the true capitalists in the colonies were fighting against and what Ike Eisenhower was talking about when he coined the term “military-industrial complex.”

While I appreciate the soundness of Truebee’s wise sentiments, the primary purpose of the corporate form is to REMOVE ACTUAL PERSONS FROM ACCOUNTABILITY.  The form is used to protect managers, CEOs, preferred stockholders from legal actions that are consequent to the corporation’s actions.  This is the only real purpose of the corporate form, plus the sale of stock (sorry common stockholders, you are NOT protected and your money gets used first to cover losses of any kind).  But distributed ownership can be (and has been and is being done) in other ways, like the coop and alliance forms.  All these forms are defined in the Federal Tax Code.  Learning about different forms of organizing business is not even that much to read.  It’s the details, implications, and consequences that are mind-boggling, not the law.

Corporate Person

Jan. 20, 2011, 2:24 a.m.

Dr D is Wrong.

Without “corporate personhood” there would be no CEOs and no stockholders because if corporations have no legal standing, THEY WOULD NOT EXIST. How can you be a stockholder in an entity which, in the eyes of the law, does not exist?  How can you be CEO???????

This is so obvious, yet none of the enlightened, conscious types appear to be able to think of it on their own.

Without “corporate personhood” the only forms of business would be sole proprietorships and partnerships.  There are very few people who would place their personal assets at risk over the behavior of distant managers, contractors and employees.  Thus there would be no large companies and no large assemblages of capital. 

For instance, nobody would write software if they could not litigate to defend their intellectual property, nobody could manufacture computers without a corporation in which to assemble all the aspects of computer design and manufacturing.  Thus this internet discussion would not exist without “corporate personhood.” 

“Corporate Personhood” is an agit-prop term being spread on campuses by silly academic Marxist perfessers who sit back amused at how easily they have interjected such nonsense into public discourse.  Their effort really kicked off with the silly propaganda movie “The Corporation”. 

And if you go to you will see they are babbling about the same SCOTUS decision this article discusses.

By the way, without corporations (including non-profit corporations) ProPublica would not exist, nor would the producers of The Corporation.  And the Supreme Court Citizens United decision was about whether campaign law could prohibit a corporation from distributing a movie that might have bearing on a campaign.  Thus if the decision had been decided otherwise, the distributors of The Corporation might have been banned from distributing their movie if someone could convince a judge it has something to do with an election campaign.  Ditto for the corporation which distributed Michael Moore’s VERY election related movie—Fahrenheit 911.

Corporations are a form of community organizing with labor and capital.  Unions are ALSO a form of community organizing with labor and capital.  All forms of organization have free political speech.  Deal with it.

Corporate Person

Jan. 20, 2011, 2:36 a.m.

BTW:  Newspapers are corporations.  Should they be silenced?  That sounds like censorship to me.  Publishing houses?  TV and Radio networks and stations?  Should they all be silenced because they are corporations?

Daniel Robert Snodgrass

Jan. 20, 2011, 10:38 a.m.

With hope, I will acknowledge and take responsibility for my actions, as I can and do embarrass myself.

Unfortunately, after turning 54, my lobby does not have the money to engage in this conversation, at least on this level.

Common Cause has just revealed that Justices Thomas and Scalia may have had a conflict of interest when they ruled on the Citizens United case. They are asking te Justice Dept. to investigate. Please go to the Common Cause website and sign their petition.

Corporate Person, it sounds like you are assuming that the only form of human organization is the corporation, or more specifically limited liability corporations.

As a freelance software developer I am easily able to create and then defend my intellectual property without the need for an incorporation.  Where you get the idea that it is required I don’t know.

I am a member of my local chamber of commerce and I was surprised to discover that a large fraction of our retail community are run as sole proprietorship’s.  Granted these are small businesses, but there are many large well run general partnerships, co-ops and other organizations that are not limited liability corporations.

Actually, Corporate Person, it is you who are wrong on many counts and Dr D is correct in my opinion. As a business owner for the last 20 years (President of a “Corporation” that has developed and marketed and supported software to Fortune 20 corporations), your understanding of the role of corporations is very incomplete. Your historical context and international context are also completely lacking.

Corporations WERE severely restricted in the United States until the late 1800’s and could only be chartered by a specific act of the state legislature provided they could show how they served a public good and needed the specific features provided by stock issuance to raise capital to implement that public good. We did quite well building our nation without corporations for the first half of the country’s history!

On the international front, China has done quite well over the last 30 years developing their economy, primarily by allowing smaller groupings of people to work together to produce real goods and services, with the capital provided by the state (banks are state owned) under terms which emphasized long term results instead of quarterly earnings and stock market perception.

Unfortunately, like many others who seem to get their information from talk radio (talk about propaganda!), you seem to have a chip on your shoulder. Your comments “It is deeply embarassing[sic] to watch so many allegedly educated persons babble about this with such paucity of understanding.” and “...silly academic Marxist perfessers[sic] who sit back amused at how easily they have interjected such nonsense into public discourse.” should instead deeply embarrass yourself. I would suggest that you take a few college classes (without assuming that each “perfesser” is a Marxist…if you really understand that term) and open your eyes a bit. My guess is you are “self educated”. That is not a bad thing if true, but being arrogant about your knowledge is a bad thing. With any form of education (except propaganda), the more you learn, the more you realize how much you don’t actually know.

There are good things about corporations and bad things. There are good corporations and bad corporations. But a corporation is not a person.

The idea that corporations should have the same rights as real persons is a legal idea that likely was originally dreamed up in some corporate legal department or by a law firm representing the interests of their corporate clients when trying to get out of some particular legal trouble. (This last part is my speculation based on logic and I can’t specifically back it up). It is perfectly reasonable for real persons to question the trend of expanding corporate rights into areas that increase their power at the expense of real persons.

Thanks Bryan, I couldn’t agree more.

I am in BC Canada and at our local level of government businesses were seeking the vote in municipal elections.  The argument was that businesses pay a higher tax rate then individuals yet without the vote it was taxation without representation.

A more anti-DEMOcratic thought I can scarcely imagine. The attempt failed but I was surprised at how many business owners in my community found it a perfectly reasonable argument.

I was also surprised by the number of business owners who confused themselves with their incorporation.  As they were lobbying for this vote they would refer to “themselves” and their “business” interchangeably as if it was the same thing. 

I like to characterize corporations as “accounting machines”, so it would be as if I built a tractor and then lobbied for my tractor to have a vote.  LOL

This is most definitely a disproportionate turn of events, WE the common people have NO RIGHT TO PRIVACY thanks to HOMELAND SECURITY. As a Corporate Human, THEY DO?????
With the discrimination faced by different facets and minority groups in our society, How long before Corporate humans also claim minority status, due to (transgendered) changes at the top? With their reasoning, they expect to garner not only equal, but favored status. Real minorities ...BAD,  Contrived minorities…....GOOD.

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