Corporate Personhood and the Fourth Estate: How the definition of corporations and unions as “individuals” has altered the media’s ability to act as the Fourth Estate by Kacey Deamer

Class: Government and Media

Major: Journalism, Class of 2013

Define ‘Person’

A human is a person, but a person is not necessarily a human. The term “corporate personhood” likely was not on the Founding Fathers’ minds when they drafted the Constitution. But the groundbreaking Supreme Court decision on Citizens United v. Federal Election Commission in 2010 found corporations and unions to be protected by the First Amendment from government restrictions of political donations. By granting corporations the rights of the people, to act as individuals in financial political support, the Supreme Court allowed campaign donations made by corporations and unions to be unlimited, private and, therefore, misleading in public documents. In that, SCOTUS may have impeded the media’s ability to fully function as the Fourth Estate.

            Citizens United was not the first step towards corporate personhood in the United States, however, and it likely will not be the last.[1] With the 2012 election season at an end, the impact of corporate personhood was tested by the media in its coverage of political spending. From Mother Jones’ “Dark Money” series to the pre-election Google eBook Billionaires & Ballot Bandits: How to Steal an Election in 9 Easy Steps, there are already stories of corporate political spending’s impact on the election, and on the media.

The Birth of Corporate Personhood

The now infamous Citizens United case was not necessarily the beginning of corporate personhood, but it was the catalyst. In 2008, Citizens United, a political organization, was “electioneering communications” within thirty days of a primary, which violated the Bipartisan Campaign Reform Act of 2002.[2] Essentially, Citizens United produced a film about Hilary Clinton showing her as a “European Socialist.” The Federal Election Commission (FEC) barred the film’s airing because they determined it to be a 90-minute campaign ad that did not identify who had paid for it. Citizens United argued against the FEC’s action, calling it a violation of the First Amendment. The case reached the Supreme Court in 2010, where the court overturned the lower courts’ conclusions and granted First Amendment rights to the corporation.[3] They ruled that corporations already are considered “persons” for other constitutional purposes and therefore should have the same First Amendment rights of average voters. The Court held that the First Amendment barred the government from restricting political disbursements by corporations and unions. Citizens United, a political organization, was now a legal person.

The Federal Election Campaign Act of 1971, later developed into the Bipartisan Campaign Reform Act (BCRA,) was the first of its kind in exclusively limiting campaign spending.[4] When President Richard Nixon approved the act in February of 1972, he stated:

S. 382, the Federal Election Campaign Act of 1971, limits the amount candidates for Federal elective offices may spend on advertising … It limits contributions by candidates and their families to their own campaigns. It provides for full reporting of both the sources and the uses of campaign funds, both after elections and during campaigns. By giving the American public full access to the facts of political financing, this legislation will guard against campaign abuses and will work to build public confidence in the integrity of the electoral process.[5]

Nixon specifically noted the need for disclosure of financing, the need for public awareness. This directly relates to the media’s job to inform the public using the finance disclosure documents. An individual person does not file such documents — now neither do corporations or unions.

Person vs. Personal

The Citizens United decision has been bumped and bruised since 2010, but still holds strong. One of the more significant punches the decision took was in 2011 with the Supreme Court decision on Federal Communications Commission v. AT&T INC [6] The case concerned a federal Freedom of Information Act (FOIA) request for documents regarding a Federal Communications Commission (FCC) investigation into AT&T’s participation in a federal program. AT&T reported it might have overcharged the government for its services. The question before the Court was whether Exemption 7(c) of the Freedom of Information Act recognizes and protects the “personal privacy” of corporate entities in the same manner as it does for individuals. Exemption 7(c) states, “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.”[7]

The FCC argued that a corporation is not a natural born person so it therefore does not qualify for the “personal privacy” exemption. The oral arguments made national news as the Justices questioned the difference between “person” as determined in Citizens United and “personal” as was the question before the Court.

Justice Antonin Scalia pressed counsel for AT&T, Geoffrey Klineberg, for examples of corporate activity that would be entitled to privacy protection because of an expectation that such activity was to remain private. Without pausing for the counsel’s response, Scalia listed various phrases that supported the FCC’s position arguing that phrases using the term “personal” are rarely applied to corporate entities. Using General Motors as his model corporation, Scalia noted, “You talk about personal characteristics. That doesn’t mean the characteristics of General Motors. You talk about personal qualities. It doesn’t mean the qualities of General Motors. You talk about a point of personal privilege. It’s not a privilege of a corporation.”[8]

The Reporters Committee for Freedom of the Press (RCFP) and twenty-two media organizations filed an Amicus Curiae brief with the Court for this case as they feel the decision is of concern to the public and the media. RCFP argued that FOIA already contains exemptions that “sufficiently protect the confidentiality needs of corporations and other business entities,” and that corporations’ concerns “do not echo those of individuals” that have qualified protections.[9] The brief asked the court to find in favor of the FCC because: “Allowing a corporate entity to assert similar rights under Exemption 7(C) runs counter to the plain meaning of the term ‘personal privacy.’”[10]

The ‘plain meaning’ was what caused such media attention after oral arguments. Chief Justice John Roberts said he tried to “come up with other examples where the adjective was very different from the root noun.” He shared a few of his examples: “craft and crafty”, “squirrel and squirrelly”, “pastor and pastoral.”[11] Justice Stephen Breyer eventually pulled out a dictionary and silently flipped through it as the arguments continued. The Court, not surprisingly, decided corporations do not have personal privacy.

The Fourth Estate Still Free

The SCOTUS decision in the Citizens United case was not out of the blue, it came after a number of other cases, policies and provisions over the past forty years. The argument that Citizens’ “corporate personhood” definition would drastically alter the way the media can function ignores that this trend towards corporation rights has existed and the media has not faltered. Important court decisions like New York Times Co. v. Sullivan and New York Times Co. v. United States included the “corporate personhood” idea in their allowance of some free-speech rights to corporations. As The American Prospect noted in their analysis of the Citizens United decision: “The First Amendment would be toothless if government could prohibit anyone from paying to publish thoughts or being paid to publish them.”[12]

In fact, media corporations have taken advantage of the Citizens United decision. In October the Seattle Times Co. announced its support of Rob McKenna, the Republican nominee for governor in Washington, by running $75,000 worth of ads at the company’s own expense. The newspaper company also offered $75,000 of free ad space to a campaign for the legalization of same-sex marriage in the state.[13]

Bradley Smith argues in Unfree Speech that campaign finance reform actually hinders the balance of power, and media can play a role in that:

Once we accept the fact that different individuals control different sources of political power, it becomes apparent that attempts to exclude a particular form of power —money — from politics only strengthen the position of those whose power comes from other, nonmonetary, sources, such as time or media access.[14]

Smith notes that media access for some can outweigh the financial contributions of others. In that sense, Citizens United is actually upholding a fair approach to political campaigning in keeping monetary power in the field.

The fact that the FCC v. AT&T decision upheld FOIA, which is vital in the success of the press to act as the Fourth Estate, shows that the media was not impacted. By maintaining that the “personal” exemption does not apply to corporations, the media is still able to fully investigate through use of FOIA. The decision also involved a communications corporation, AT&T. Though not necessarily a member of the media, AT&T’s use of Citizens United in their argument, and a win in the appeals court, shows that communications companies are involved in the corporatization of personhood.

The Fourth Estate At Risk

While FCC v. AT&T can be considered a success in that it upheld the tradition of personal privacy meaning that of a human, the appeals court’s decision to the contrary is a sign that the “corporate personhood” idea has influenced the country’s decision makers. As the New York Times warned in a February, 2011 editorial:

Still, the appeals court’s mistaken view has to be taken seriously. As the acting solicitor general warned, its logic, if upheld, would lead to “personal privacy” for local, state and foreign governments, with “no meaningful benchmarks to guide the federal agencies and the courts in defining the limits” of those interests.

The creation of corporate privacy would transform F.O.I.A. into a battleground, between individuals and others seeking to hold the government accountable, including journalists, and corporations trying to block the release of records because of this new-found claim.[15]

Though SCOTUS did make the correct decision in the end, a “mistaken view,” such as the appeals court’s, could find its way into the minds of other lawmakers — something the media should be wary of.

On the decision of Citizens United there have already been numerous reports concerning hidden campaign financing from corporations. Most notably, the “Dark Money” series from Mother Jones has highlighted the difficulties in attaining information about campaign spending, and publishes those dead ends where the money has no true origin. Andy Kroll, a reporter with the independent media organization that found a niche in dark money reporting, said the Citizens United decision has one massively overlooked piece:

While Kennedy and the court’s majority backed unlimited political spending by corporations, they also stressed the importance of disclosure; that, in part thanks to the Internet, companies should disclose how much they spent and who they supported or attacked … That disclosure hasn’t happened. Nearly half of the money spent by outside political groups in the 2010 elections was “dark money,” meaning that the fundraisers themselves remained anonymous.[16]

It is disclosure that is most vital to the press’ ability to act as the Fourth Estate. Without disclosure the information essentially does not exist and therefore the public cannot be informed and the government cannot be kept in check. It is in this detail that corporate personhood hinders the media.

Media in Chains

            The argument that the media has in fact been impacted negatively by the definition of corporations and unions as “individuals” outweighs the argument that it hasn’t. In an essay by Robert F. Kennedy, Jr. published in Greg Palast’s Billionaires & Ballot Bandits: How to Steal an Election in 9 Easy Steps the impact of hidden corporate spending in campaigns is highlighted. Kennedy wrote that the Citizens United decision found that “corporations are people and that money is speech.” He continued: “And the money is talking; in 97 percent of federal elections over the past two decades, the best-funded candidates were victorious.”[17]

            Not only were 97 percent victorious, but also the media’s ability to monitor that funding has continued to decrease with decisions in favor of granting corporations rights of the people and poor enforcement of disclosure. And politicians are even speaking out against it, including the President. In his 2010 State of the Union, President Obama said the Citizens United decision “reversed a century of law that I believe will open the floodgates for special interests.”[18] The President continued:

I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people.  And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.[19]

In fact, there have been acts introduced to dismantle the SOCTUS decision, presently the DISCLOSE Act of 2012 — its full name being ‘‘Democracy Is Strengthened by Casting Light On Spending in Elections Act of 2012.’’ The Act calls for an amendment to the FEC Act so that an organization that funds a campaign in excess of $10,000 in an election reporting cycle must file a statement with the FEC no later than 24 hours after each disbursement date. So the Act does not just call for disclosure, but disclosure in a timely manner. Congress has not yet approved the Act.

Popular opinion of the voting public also shows resistance to corporate personhood and favor for disclosure. Demos, in conjunction with the Corporate Reform Coalition, surveyed citizen opinion related to the results of Citizens United. The results of which show citizens have an expectation of disclosure — and while an individual person may not be seeking out records, there is an expectation that the media would report such information. The survey found that 75 percent of respondents would sign a petition to the SEC for corporate disclosure. Just over half, 52 percent, would go one step further and attend a company’s shareholder meeting to ask for disclosure.[20]

The fact that there is such a want, a need for disclosure in order to ensure there is no corruption in elections or the government or corporations in general all points to the job of the media. The First Amendment was meant to protect human speech and press freedoms, corporate personhood is a violation of that and a misinterpretation of what “speech” is.[21] As more reports are released following the 2012 election results, there will be mention of the dark money involved in politics and the restraints on the press’ ability to act as the Fourth Estate.

Endnotes

[1] David S. A. “The First Amendment and the Doctrine of Corporate Personhood: collapsing the press-corporation distinction.” Journalism [serial online]. December 2001: 255-278. Accessed September 26, 2012.

[2] Bipartisan Campaign Reform Act of 2002 (BCRA, McCain–Feingold Act). Enacted March 27, 2002, H.R. 2356, 107th Cong. (2002).

[3] Citizens United v. Federal Election Commission. 558 U.S. 310. (2010).

[4] Federal Election Campaign Act of 1971 (FECA). Enacted February 7, 1971. 2 U.S.C. § 431, 92nd Cong. (1971)

[5] “Statement on Signing the Federal Election Campaign Act of 1971,” Richard Nixon, February 7, 1972. http://www.presidency.ucsb.edu/ws/index.php?pid=3725

[6] Federal Communications Commission v. AT&T INC. 562 U.S. 490 (2011).

[7] Kacey Deamer, “High court hears argument in FOI corporate privacy case,” Reporter’s Committee for Freedom of the Press, January 19, 2011. http://www.rcfp.org/browse-media-law-resources/news/high-court-hears-argument-foi-corporate-privacy-case

[8] Deamer

[9] Brief for the Reporter’s Committee for Freedom of the Press as Amicus Curiae, FCC v. AT&T, 562 U.S. 490 (2011).

[10] Brief for RCFP in FCC v. AT&T

[11] Deamer

[12] Garrett Epps, “Don’t Blame ‘Corporate Personhood,’” The American Prospect, April 16, 2012. http://prospect.org/article/dont-blame-corporate-personhood

[13] Jim Brunner and Andrew Garber, “Times Co. criticized for McKenna, gay-marriage ad campaigns,” The Seattle Times, October 17, 2012. http://seattletimes.com/html/localnews/2019458942_adcampaign18m.html

[14] Bradley Smith, Unfree Speech: The Folly of Campaign Finance Reform, Princeton University Press: 2003.81

[15] “Personal Privacy and the Right to Know,” The New York Times, February 6, 2011. http://www.nytimes.com/2011/02/07/opinion/07mon3.html?_r=0

[16] Andy Kroll, “Unmasking Dark Money Is Good for Democracy—and for the Bottom Line,” Mother Jones, September 7, 2011. http://www.motherjones.com/mojo/2011/09/citizens-united-dark-money-corporations-disclosure

[17] Robert F. Kennedy, Jr., “A Hostile Takeover of Our Country” published in Billionaires & Ballot Bandits: How to Steal an Election in 9 Easy Steps edited? He’s the author. by Greg Palast. Seven Stories Press, September 25, 2012.

[18] President Barack Obama, “Remarks by the President in State of the Union Address,” The White House, January 27, 2010. http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address

[19] Obama

[20] Liz Kennedy, “Citizens Actually United,” Demos.org, October 2012. http://www.demos.org/sites/default/files/publications/CitizensActuallyUnited_CorporatePoliticalSpending.pdf

[21] Tucker A. “Flawed Assumptions: A Corporate Law Analysis of Free Speech and Corporate Personhood in Citizens United.” Case Western Reserve Law Review [serial online]. Winter 2011:497-550. Available from: Academic Search Premier, Ipswich, MA. Accessed September 22, 2012.

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