By Elizabeth Wydra, Chief Counsel

If you were in the Supreme Court for this morning’s argument in FCC v. AT&T, you might have assumed that it was the first time that a Justice had found the finer points of being a squirrel relevant to a case before the High Court (as Chief Justice John Roberts did when he asked AT&T’s lawyer about the difference between the noun “squirrel” and the adjective “squirrelly”).  Not so.  Just last year, Justice Antonin Scalia wrote an opinion invoking the perplexing question of how much wood would a woodchuck chuck if a woodchuck could chuck wood?  (Woodchucks are the largest member of the squirrel family.)  While today didn’t mark a milestone for the family Sciuridae, it did apparently herald another first: the first time that the phrase “personal privacy” has been used to refer to a corporation’s interests rather than the dignity interests of the living, breathing human beings to which the term “personal privacy” so obviously refers.

As discussed in this preview of the FCC v. AT&T argument, AT&T has asked the Supreme Court to find that corporate documents can be shielded from public disclosure under the Freedom of Information Act (FOIA) pursuant to FOIA Exemption 7(C), which protects against public disclosure of law enforcement records that “could constitute an unwarranted invasion of personal privacy.”  AT&T put forth a rather clever argument that, because the Administrative Procedure Act—of which FOIA is a part—defines “person” to include corporations, the statute must also intend to include corporations in the concept of “personal privacy.” 

This argument went up in flames this morning when Chief Justice Roberts pointed out several examples where a root noun differed significantly from the related adjective—for example, “craft” and “crafty,” or “squirrel” and “squirrelly,” or “pastor” and “pastoral.”  Even more damaging was the admission by AT&T’s counsel that he could not come up with a single example where the phrase “personal privacy” has referred to corporations.  Not in the law, not in the media, and not in common usage.  When AT&T’s lawyer expressed surprise that no one else had claimed corporate “personal privacy” in more than 35 years of FOIA law, Justices Stephen Breyer and Scalia suggested that the issue had not arisen because no one had previously thought it was a plausible claim.

By the end of the argument, it appeared that a majority of the Justices were reluctant to break new ground to be the first to ascribe “personal privacy” interests to corporations.  This is encouraging, given the possibility that a pro-corporate majority could use FCC v. AT&T to extend the concept of corporate “personhood” beyond the Court’s monumentally wrong decision last year in Citizens United, which gave corporations the same constitutional right as individual Americans to spend money to influence the outcome of candidate elections.  CAC argued against unfounded rights of corporate personhood in Citizens United and again in FCC v. AT&T.

Rejecting AT&T’s claim would clearly be the right thing to do.  As the United States explained at argument this morning, Congress crafted FOIA to protect legitimate corporate interests in trade secrets and other confidential business information.  But Congress did not and could not imbue corporations with the dignity interests that FOIA protects when it shields living, breathing human beings from invasions of personal privacy.  A corporate charter cannot blush or feel embarrassed by FOIA’s policy of transparency.   

Figuring out how those crafty squirrels feel about it, meanwhile, will have to wait for another day.