Elizabeth Pollman (Loyola LA) has been doing some very interesting work, albeit reaching substantive conclusions with which I have often disagreed but only after having my preconceptions challenged and new lines of inquiry being suggested. Her latest paper is a case in point: A Corporate Right to Privacy (April 1, 2014), which is forthcoming in the Minnesota Law Review, and is currently available at SSRN: http://ssrn.com/abstract=2419297:
Abstract: The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions for the future, and the ones that offer the greatest potential for better understanding the nature of corporate rights. This Article analyzes one of those questions — whether corporations have, or should have, a constitutional right to privacy. First, the Article examines the contours of the question in Supreme Court jurisprudence and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on this unresolved issue. Second, the Article examines approaches to determining the scope of corporate constitutional rights and argues that corporate privacy rights should be evaluated not by reference to the corporate form itself or a notion of corporate personhood, but rather by reference to the privacy interests of the various people involved in the corporation and their relationship to the corporation. Further, because corporations exist along an associational spectrum — from large, publicly traded corporations constituted purely for business purposes to smaller organizations with social, political, or religious purposes — the existence of a corporate privacy right will and should vary.
Fundamental point of disagreement: Pollman recognizes that the question is complex and difficult, but at the end of the day her analysis assumes that there is some generic constitutonal right of privacy. In contrast, I regard the whole idea of constitutonal "penumbras" as an abomination that should never have been allowed to live. In my view, not that it matters, the Constitution is a document of enumerated powers and rights. Hence, while specific aspects of privacy are protected, there really is not (or, at least, ought not to be) a generic right of privacy. Indeed, I'm not convinced that there is such a right. To be sure, this is not my area of the law, but as I read the Supreme Court cases the "right of privacy" basically exists to enshrine the sexual revolution into the Constitution. As Pollman herself points out, most of the Supreme Court cases in this area deal with "reproductive freedom, sexuality, and family relationships."
Point of fundamental agreement: Pollman argues that:
The corporation may be better positioned or the only effective actor to vindicate the privacy interests of these individuals acting in association. Further, the freedom to associate, a right that is understood to extend to groups including corporations, is linked to the concept of privacy. ... Thus, there are reasons to believe a constitutional right to privacy may be an important check against government power for individuals who act together through the corporate form, but that according such a right to all corporations would be unfounded and could powerfully shield them from investigation or regulation. (5-6) ...
Contrary to public belief, the Court’s jurisprudence extending constitutional protections to corporations does not do so on the basis that corporations themselves, as legal entities, are like natural persons. Rather, the doctrine of corporate personhood merely stands for the principle that a corporation can be accorded protections in order to protect the rights of the individuals associated through the corporate form. (24)
[C]orporations do not receive rights because the characteristics of the entity so closely resemble a natural human so as to merit granting the right; rather corporations receive rights because, as forms of organizing human enterprise, they have natural persons involved in them and sometimes it is necessary to accord protection to the corporation to protect their interests. (25)
I couldn't agree more, but I do have a suggestion. In the current draft, Pollman doesn't cite the late Larry Ribstein's work on the corporation and the constitution. Larry's work on developing a nexus of contracts-based theory of corporate constitutional rights is squarely on point and supports at least this part of Pollman's argument. In The Constitutional Conception of the Corporation, 4 Sup. Ct. Econ. Rev. 95 (1995), for example, Larry argued that the first amendment rights of corporations exist to protect speech by managers:
Under the contract theory of the corporation, the separate corporate entity disappears for constitutional purposes and the speech is attributed to those immediately responsible for it.
Likewise, in Corporate Political Speech, 49 Wash & Lee L Rev 109 (1992), Larry argued that:
The corporation, as a nexus of contracts, obviously cannot be “speaking.” Accordingly, corporate speech should be constitutionally protected only to the extent necessary to protect the rights of individuals connected with the corporation. In closely held corporations with decentralized management, the owner-managers usually are speaking for the corporation. In publicly held corporations, however, there is some question as to who the speakers are, and therefore who, if anyone, should be protected by the First Amendment. Before considering the extent of constitutional protection that should be accorded corporate speech, it is necessary first to consider precisely whose First Amendment interests are at stake, particularly in publicly traded corporations.
For those who want more on this issue, I commend to your attention Larry's book (with Henry Butler) The Corporation and the Constitution
