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Wednesday, March 02, 2011

Language Arts 101

Thank you to Dan and the PrawfsBlawg community for giving me the opportunity to share in your discussions and for inviting me onto your desks (or desktops), laps (or laptops) or into your hands (or handheld electronic devices). It is indeed a great honor, and I hope we can stimulate discussion and have some fun.

Speaking of fun, I thought I would start with a little snark.

Yesterday, the Supreme Court unanimously shot down AT&T's argument that corporations have "personal privacy" that allows them to withhold information under one of the exceptions to the Freedom of Information Act (FOIA). The opinion, available here, is notable not for its unanimity (Justice Kagan did not participate), but for its nod to everyone who did well in language arts as a child and to those who like to see some humor -- sarcastic or genuine -- in court decisions.

Some linguistic flair and Chief Justice Roberts's sense of humor AFTER THE JUMP.

Confronted with a FOIA request from its competitors, AT&T wanted to withhold some documents under FOIA Exception 7(C) as protected by the "personal privacy" rights of the corporation. It argued that since a corporation is a "person," a corporation has "personal" rights; after all, the adjectival form of a defined word should refer to the defined word. The Third Circuit agreed.

Chief Justice Roberts must have found this amusing. For the next few pages, he gives AT&T and the Third Circuit a lesson in the complexity and nuance of American English:

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New International Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” id., at 509, which has little to do with “corn,” id., at 507 (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of anaxis bent at right angles,” “cranky” can mean “given to fretful fussiness,” id., at 530.

Hilarious. And, a welcome lecture to those of us who have argued the plain meaning of statutory, regulatory or constitutional terms before panels of judges. One of the many things that makes the study of law so incomprehensible to the average American is our oft incomprehensible (mis)use of the English language. We create terms of art that do not always mean what they sound like they should mean and make seemingly arbitrary liguistic distinctions that have great impact. At least when it comes to the strange notion of corporate privacy, common sense wins out.

But, it is worth discussing the importance of FCC v. AT&T not only for the language it includes, but for the words it omits. The word "citizens" never appears, which means that the Chief Justice never referenced Citizens United, the widely criticized decision that used the personhood of the corporation to allow for unlimited election spending. When the Court handed down Citizens United, many scholars wondered what kind of effects that decision's broadening of corporate free speech rights might have. But, Chief Justice Roberts avoided that lightning rod with his linguistic analysis. There was less a discussion of the legal nature of "corporate personhood" than an English professor's discussion of the differences between "person," "personal" and "personhood." Also omitted from the discussion was any analysis of the intent of Congress when passing FOIA, but perhaps that was a strategic omission to obtain unanimity and bring on board those justices who find legislative history as awkward as multivariable calculus.

Some commentators have already suggested that AT&T is the Court taking a step back from Citizens United. I disagree. The fact that we are not required to ascribe all "personal" rights to a "person" -- however that word is defined -- does little damage to the Court's free speech analysis in Citizens United.

Your thoughts?

Posted by Ari Ezra Waldman on March 2, 2011 at 11:19 AM in Constitutional thoughts, Corporate, Current Affairs | Permalink


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