Friday, January 21, 2011

Unhappy anniversary, One

So today, Friday, is the one-year anniversary of the hideously bad Citizens United decision, the one that allowed over $100 million in "outside" contributions to flow into the 2010 elections on behalf of the most pro-corporate candidates.

When it was first handed down, Glenn Greenwald endorsed the ruling. I went after him on that (and in my own never-humble opinion took his argument apart) in a series of three related posts: one on his claim that the ruling expressed a genuine understanding of free speech, even if the results were unfortunate; one on his claim that "corporate personhood" was not a relevant issue; and one on his demonstrably false claim that such personhood was so much not an issue that the minority never even considered it.

One of the things I argued in that second post was to ask if that because of existing precedent corporations must be regarded as "persons" for the purpose of the First Amendment, where does that end? Where or even how can you draw the line?
Do corporate "persons" have all the other rights of people under the Constitution? If not, how do you pick and choose? By your logic, I don't see how you can. So can a corporation reply to a demand for records by pleading the Fifth Amendment right against self-incrimination? Could a US corporation that's been around for 35 years run for president? How, once you say that corporations have the same rights as individuals, could you say no?
I mention that in particular because of this from, appropriately coming right around the anniversary:
For the past 35 years, whenever someone has used the Freedom of Information Act to ask for documents the government obtained as part of a law enforcement investigation, the government has had to assess whether their release would violate a human being's personal privacy. If so, the government had to redact or withhold the documents.

On Wednesday, AT&T tried to convince the Supreme Court that documents violating a corporation's personal privacy should be withheld too. ...

AT&T's core argument was this: Since a corporation is often defined in law -- including a case-relevant one -- as a "person," and "personal" is the adjectival form of "person," then the "personal privacy" exemption to the Freedom of Information Act must apply to corporations too. The argument was persuasive to the Circuit Court of Appeals for the Third Circuit, which ruled for AT&T.
So even though it involves the FOIA and not the Fifth Amendment, I still say that it's just as I predicted: Business interests are indeed arguing that if corporations are "persons" and so have the right of free speech, they must also have the right of personal privacy. And the 3rd Circuit US Appeals Court agreed with them.
Thankfully, the [Supreme Court] justices' questions were so deeply skeptical of this concept that it's hard to imagine the court agreeing with AT&T when it ultimately decides the case later this year.
Even the reliably pro-corporate John Roberts and Antonin Scalia seemed quite unimpressed with the corporate argument.
The case is a good reminder, however, of just how far our legal system has gone in equating corporations and people. Remember, AT&T won at the appellate court level.
I guarantee this will not be the last such case and the last such argument. I wonder if Glenn Greenwald, who is usually quite good, has considered apologizing for his misguided support.

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