June 28, 2014
A Corporate Right to Privacy?
Posted by Elizabeth Pollman

The Supreme Court’s decision in Hobby Lobby is expected to come down on Monday morning.  While we wait, I thought I might say a bit about some forthcoming work I have on another open area in the realm of corporate constitutional rights. . . . whether corporations have, or should have, a constitutional right to privacy.

You might ask, wasn’t there that AT&T v. FCC case about the “personal privacy” exemption under FOIA?  Yes, but as AT&T made no constitutional privacy claims, the Court decided the case as a matter of statutory interpretation.  There is also an older case, United States v. Morton Salt, which scholars and courts sometimes cite as establishing that corporations have no constitutional privacy, but that wasn’t the holding and it pre-dated the Court’s privacy jurisprudence.  The Supreme Court has never squarely addressed whether corporations have a constitutional right to privacy, either under its decisional autonomy or informational privacy line of cases.

I take up this open question by first looking at why corporations receive any constitutional protection and how the Court has approached these determinations in the past.  Here, I explain the derivative basis for corporate rights—that the Court has often relied on a conception of the corporation as an association of persons from whom rights can be derived, and note that this extension of rights has been limited in scope.  This part gives a taste of a more detailed analysis and study of the issue that Margaret Blair and I have been working on in another forthcoming article (The Derivative Nature of Corporate Constitutional Rights, forthcoming in the William & Mary Law Review 2015), and it builds on some previous work I’ve done on corporate personhood.  One of the core points here is that the Court has accorded protections to corporations in order to protect the rights of individuals associated through the corporate form.  The article thus looks to whether the purpose of the right is served by according it to the corporation in question—that is, whether it is necessary to protect natural persons—and if the right is of a type that inheres only in an individual capacity or if it can be held derivatively.

Applying this understanding to the corporate privacy question, I argue that because corporations exist along a spectrum—from large, publicly traded corporations constituted for business purposes to smaller organizations with social, political, or religious purposes—the existence of a corporate privacy right will and should vary.  In most circumstances, and with respect to most corporations, according a privacy right would not serve the purpose of such a right because people are not involved in the corporation in a way that warrants that protection.  One of the main contributions of the article is thus measured analysis of why most corporations should not have a constitutional right to privacy.  I also suggest, however, that a categorical denial of privacy rights to corporations may be unwise in our world of diverse corporations, particularly given the evolving and indeterminate concept of privacy.

This analysis requires grappling with what the constitutional right to privacy is aimed at protecting and whether privacy can be conceived of as including groups.  Further, it requires looking into different types of corporations and examining whether there are persons involved who would have a privacy interest at stake that would be protected by granting the corporation a right to privacy.

The article is A Corporate Right to Privacy, forthcoming in the Minnesota Law Review this fall, and it is available in draft form on SSRN. . . 

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