In its Citizens United opinion from last year, the Supreme Court shot down certain campaign-finance limits. In so doing, the court essentially ruled that U.S. corporations have First Amendment free-speech rights.
Might the court take another step toward imbuing corporations with all the rights guaranteed U.S. citizens?
It now has the vehicle to do so if it wants to: The high court agreed to hear a case involving AT&T to consider whether a corporation can challenge the release of government documents as an infringement of the company’s privacy rights. Click here for the Bloomberg story; here for the AP story.
The justices on Monday said they will hear the Obama administration’s appeal of a Third Circuit ruling that corporations can invoke a provision in the federal Freedom of Information Act law that protects against invasions of “personal privacy.” Click here for the Third Circuit opinion.
This is an area where the Supreme Court needs to bring some clarity. Over the years, the Court has granted the corporation--by virtue of its legal personhood--most of the constitutional rights possessed by natural persons. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978) (corporation has First Amendment right of free speech); Hale v. Henkel, 201 U.S. 43 (1906) (corporation gets Fourth Amendment protection against unreasonable searches and seizures); Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26, 28 (1888) (corporation entitled to due process of law under the Fifth and Fourteenth Amendments); Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394, 416 (1886) (corporation entitled to equal protection of the law under the Fourteenth Amendment).
OTOH, the Court has denied the corporation some of the rights that natural persons possess. Hale v. Henkel, 201 U.S. 43 (1906) (corporation not protected by Fifth Amendment privilege against self-incrimination); Blake v. McClung, 172 U.S. 239 (1898) (corporation not covered by the privileges and immunities clause of the Fourteenth Amendment or of the comity clause of Article IV).
There does not seem to be a coherent theory for deciding which constitutional rights the corporation possesses and which it does not.
Does it depend on our theory of the corporation? If we conceptualize the corporation as an artificial entity created by the state, why should that creature be able to assert any rights as against its creator? OTOH, if we think of the corporation as a legal fiction representing an aggregate of people, those people might be entitled to assert their rights collectively via the corporate form.
Or perhaps it depends on the intent of the framers. Here the trouble is that the role of corporations in society has drastically changed since the Bill of Rights (which is where most of the action is) was adopted. The framers may not have given any thought to the issue of corporate rights.
Perhaps it depends on the purpose behind the amendment in question. If free speech is a trump, then at least media corporations have to have First Amendment rights if speech is to be protected in a modern economy. As with the intent of the framers, however, application of purpose standards is not always easy.
In sum, this is an area that badly needs cleaning up. Somehow, however, I won't be holding my breath.
