Behind the Dictionary

Lexicographers Talk About Language

The Supreme Court Debates, What Does "Personal" Mean?

AT&T wants you to believe that corporations are people, just like you and me, and that just like us, they have a constitutional right to privacy. To prove it, AT&T says, just look at the law and the dictionary.

Here's the law. The U.S. Supreme Court held in Citizens United v. Federal Election Commission (2010) that corporations were persons under the law, and as persons their contributions to political campaigns constituted speech that is protected by the First Amendment.

In Federal Communications Commission v. AT&T, which was argued before the Court this week, the telecommunications giant has asked the Court to go one step further and rule that, since corporations are persons, and since personal is simply the adjectival form of person, then corporations like AT&T enjoy a right to personal privacy.

At issue is exemption 7(c) of the Freedom of Information Act, which protects from public disclosure "records or information compiled for law enforcement purposes . . . [that] could reasonably be expected to constitute an unwarranted invasion of personal privacy."

Here's what that means for an individual's personal privacy. Suppose you complained to the National Highway Traffic Safety Administration that your 1947 Hudson Hornet experienced sudden, uncontrolled acceleration. Looking into that complaint, NHTSA finds that on the same day you experienced sudden acceleration you also got an unrelated speeding ticket which your friend the mayor subsequently tore up. Some months later, a reporter files a FOIA request to see complaints about uncontrolled vehicular acceleration. Under exemption 7(c), the agency couldn't tell the reporter about your speeding ticket or your political clout, because even though that information was gathered pursuant to a law enforcement investigation, its release would be an unwarranted invasion of your personal privacy.

AT&T wants to be covered by exemption 7(c) as well, to suppress incidental information that might turn up, for example, in the course of an antitrust investigation—perhaps two executives said something negative about a client, which, if it became public knowledge, might help a competitor like Verizon. By AT&T's logic, if corporations are persons, as they are in Citizens United, then they too have a right to personal privacy.

The telephone company has a troubled history when it comes to issues of personal privacy. In the early days of telephony, operators had to listen in on telephone conversations so they could manually disconnect the call when it was done. If an operator overheard anything off-color or that otherwise violated company policy, as when a subscriber let a guest use the phone, she (in those days operators, called "hello girls," were always women) could disconnect the call, and for repeated violations the utility could threaten to yank out the telephone.

Lily Tomlin as telephone operator Ernestine

With such invasions of personal privacy, it's not surprising that a folk mythology arose about telephone police who could enter your house without a warrant and remove any illegal extension phones they found there. The phone company managed to collect all sorts of private information about its customers, as well, and television audiences found Ernestine, the operator created by Lily Tomlin for Rowan & Martin's Laugh-In, both funny and frightening when she told one customer upset about the phone company's ability to access his bank and brokerage accounts, "We are not subject to city, state, or federal legislation... We are omnipotent." In a Saturday Night Live appearance, Ernestine tells callers complaining about poor service, "We don't care. We don't have to. We're the Phone Company." Now it's the phone company's turn to complain about the public's ability to access its secrets.

FOIA is designed to make government operations more transparent and government agencies more publicly accountable, but it recognizes that in the interests of national security and to protect individuals from prying eyes, some information may be held back. The law's exemption 6, for example, permits the government to withhold all "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Here personal privacy can only refer to people. Corporations never get blood tests or x-rays, and they are never late to work.

But the Third Circuit of the U.S. Court of Appeals, which sided with AT&T, ruled it is a "grammatical imperative" that "a statute which defines a noun has thereby defined the adjectival form of that noun." In other words, if corporations are persons, under the law, then they have personal qualities.

Here's where the dictionary comes in. The Oxford English Dictionary explicitly defines personal to exclude 'corporate': "Of, relating to, concerning, or affecting a person as a private individual (rather than as a member of a group or the public, or in a public or professional capacity); individual, private; one's own." But in its brief, AT&T cites Webster's Third, the standard dictionary of American courts, which simply says, "[o]f or pertaining to a particular person." AT&T then argues that, since the dictionary defines personal as referring to person, and the Court has defined person to include corporations, personal must also refer to them, and "Thus, as used in FOIA, 'personal' means 'of or pertaining to a particular' 'individual, partnership, corporation, association, or public or private organization.'"

However in oral arguments, Justice Scalia, who is usually on the side of big business, suggested that corporate personal privacy was not idiomatic. In Washington, D.C., v. Heller (2008), Scalia had dismissed extensive linguistic evidence proving that the phrase bear arms almost always suggests a military context, because he wanted to interpret the Second Amendment as establishing an individual right to own firearms. Other uses of bear arms are just not idiomatic. As the historian Garry Wills put it, "You can't bear arms against a rabbit." But while in some future case before the Court, J. Scalia may award corporations the right to bear arms, in the present case he seemed reluctant to award them personal privacy, asking AT&T's lawyer Geoffrey Klineberg, "Can you give me any examples in common usage where people would refer to the personal privacy of a—of a corporation? It's a very strange phrase to me."

Chief Justice Roberts similarly rejected AT&T's dictionary definition:

Your central argument is that because "person" is defined to include corporation, "personal" in the same statute must include corporate. . . . I tried to sit down and come up with other examples where the adjective was very different from the root noun. It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn't have much to do with craft. Squirrel, squirrely. Right? I mean, pastor—you have a pastor and pastoral. Same root, totally different. So I don't understand—I don't think there's much to the argument that because "person" means one thing, "personal" has to be the same relation. [35]

Justice Ginsberg then cited an amicus brief with "dozens and dozens of examples to show that, overwhelmingly, 'personal' is used to describe an individual, not an artificial being" (36). But despite this barrage from both ends of the judicial spectrum, Klineberg continued feebly to insist that "'Person' is, then, defined by Congress as—to include not only individuals, but—but corporations and other associations" (36).

The Court will issue its decision in FCC v. AT&T later this Spring. If the oral arguments are any indicator, it may choose not to take its Citizens United precedent further, declining to rewrite the legal definition of personal privacy to include corporations. But while the Court deliberates, it would be well for it to note that the Freedom of Information Act itself twice distinguishes between persons and entities,

In this clause, the term "a representative of the news media" means any person or entity that gathers information of potential interest to a segment of the public. [5 USC § 552 (4)(a)(ii)(III), emphasis added]

and

"Submitter" means any person or entity who provides confidential commercial information to the government [Ex. Ord. No. 12600 Sec. 2(b)]

The language of FOIA suggests that while Congress recognizes a corporate right to guard trade secrets and to keep other proprietary information out of the public eye, it did not intend for corporations, which are entities, even though they are sometimes permitted to act like persons, to enjoy the benefits of personal privacy. That should reassure those persons alarmed that a company with a long history of disregard for personal privacy now seeks to claim the benefits of personal privacy for itself. Between the skepticism of the Court toward AT&T's definition of personal and the fact that AT&T is also about to lose its lock on the iPhone, it may turn out that, Ernestine notwithstanding, the telephone company is not omnipotent after all.


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Dennis Baron is professor of English and linguistics at the University of Illinois and writes regularly on linguistic issues at The Web of Language. He is the author of A Better Pencil: Readers, Writers, and the Digital Revolution. You can follow him on Twitter @DrGrammar. Click here to read more articles by Dennis Baron.

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Comments from our users:

Monday January 24th 2011, 2:01 AM
Comment by: Barbara A.
THANK YOU for publishing Dennis Baron's essay. I was surprised to see it, but very pleased to read it.
Monday January 24th 2011, 2:16 AM
Comment by: agoddessinlove (I wander far and wide, CA)
Now this is the sort of linguistics conversation that really turns me on.

How in heaven's name did we ever come to this? I am very relieved to see that even at our most didactic common sense prevails.

As a writer that worked for some years in the land of Legalese I see the repercussions of slight changes in interpretation as monumental. A slow and steady groove worn into the brotherhood of humanity by the constant repression of emotion in our pursuit of "justice."

To answer this question we must ask, on one hand yes, what precedence for interpretation do we have here and, on the other as important hand, we must ask how does this interpretation FEEL? What will be the unintended consequences in the years to come of our definition imposed today?

I can simply ask, where are the Grandmothers?
Monday January 24th 2011, 10:45 AM
Comment by: Cameron Reddy (Ann Arbor, MI)
Dennis Baron is professor of English and linguistics. He needs to stick to those disciplines. When he suggests that Justice “Scalia had dismissed extensive linguistic evidence proving that the phrase bear arms almost always suggests a military context, because he wanted to interpret the Second Amendment as establishing an individual right to own firearms“ he ventures into political argument and a discussion of the Second Amendment of which he apparently knows little. That “bear arms” was often used to reference military use of firearms is interesting but not determinative. As extensively catalogued by Justice Scalia, the Founding Fathers unquestionably understood the term, as used, to encompass the personal right to own a firearm for one’s defense. Mr. Baron seems to think this a particularly significant point:

At the time of the Second Amendment’s adoption, the word
“arms” had an overwhelmingly military meaning.
For example, Samuel Johnson’s eighteenth century
dictionary defines “arms” as: “1. weapons of offence,
or armour of defence. . . .“

Imagine the bad guy is coming down the hallway in the middle of the night. I suggest that quickly donning a coat of heavy iron mail to save your family from mayhem is not what the Founding Fathers had in mind.
Monday January 24th 2011, 11:13 AM
Comment by: William B. (Troy, MI)
Perhaps we can apply some reasoned tests to determine the personhood of coporations. For example, can a corporation vote in a political election? Can a corporation be "head of a household" for tax purposes? Is a corporation counted in the 2010 U.S. census? Does the existence of a corporation enter into the apportionment equation of states for the U.S. House of Representatives? To my mind, a corporation failed the test of personhood in each of these tests. Why the Supreme Court has defined a corporation as a person is beyond reason. The court has merely created a slippery slope against which individual rights are being eroded.
Monday January 24th 2011, 2:09 PM
Comment by: Dennis B. (Urbana, IL)Visual Thesaurus Contributor
@Cameron R.: In response to your claim that I engage in "a discussion of the Second Amendment of which he apparently knows little," that's actually not the case. I actually know more about the Second Amendment than I ever thought I would. Both J. Scalia in his opinion and J. Stevens in his dissent cited evidence from my amicus brief in support of plaintiffs--referred to as the Linguists' Brief--in the Heller case, though the justices had different takes, as shown by their votes and some of their comments, on the brief's overall argument.
Tuesday January 25th 2011, 12:49 PM
Comment by: Cameron Reddy (Ann Arbor, MI)
Dennis, thanks for the reply. You are a linguist so I’m sure you understand the thrust of my comment was to express dissatisfaction with your gratuitous comment suggesting that Justice Scalia’s methodology was tinged by personal ambition.

The words used in documents created through the give-and-take of committees and compromise are rarely as easily understood as a dictionary would indicate. To argue that “bear arms” meant only a state’s military use of weapons is to ignore the expressed intent of those who wrote, agreed to, and ultimately voted on the words. And the vast majority of scholars agree with Justice Scalia. In short, a purely linguistic examination is inadequate to the task.

Corporations are likewise difficult to understand by a sterile examination of words. The construct was designed to limit personal liability. Few people would invest in a business (which is to say, buy stock) if doing so was tantamount to placing their families in the cross hairs of personal injury lawyers. By creation of the corporate entity, we have a system to encourage investment while limiting loss to that which is invested.

So, while a corporation necessarily has characteristics of a person so that it can function in society, and must be granted a degree of commercial privacy to retain and benefit from trade secrets which form the basis of is business, a corporation most certainly is not a person to whom (or which?) personal privacy is essential or even appropriate.

Quite apart from witnessing Justice Scalia’s duplicity, you have, perhaps grudgingly, uncovered his fidelity to the law and just principles.
Saturday January 29th 2011, 1:33 PM
Comment by: William C. (Easthampton, MA)
My dear friend, Cameron R., you seem to be shocked, shocked, that Dennis Baron would dare suggest "that Justice Scalia's methodology was tinged with personal ambition."

Actually, rather than "tinged," I would suggest "drenched." There's no question in my mind that Scalia was chosen by his original nominators because they could find no more partisan a political warrior than he. Or do you really believe that Scalia is a Solomonic model of temperance and impartiality? ...and that's why Ronald Reagan's advisors originally selected him for nomination?

...and how do you argue Gary Will's point about "bearing arms" against a rabbit? That seems to be a slam-dunk for me.
Saturday January 29th 2011, 3:35 PM
Comment by: Jane B. (Winnipeg Canada)Top 10 Commenter
William C, I think there might have been some amongst the colonials about bearing arms extending beyond the military given the restrictions on hunting that existed in England, and the restrictions that had been imposed on some of the populations that England conquered, such as the Scots. I think that they were very determined to be able to 'bear arms' in self defense as well as for hunting. It was a new country, one separating from centuries of tradition that held people back.

So in spite of the idiom being out of place for anything unmilitary, the feeling of wanting an entrenched right to own firearms for whatever purpose must have been strong.

I'd like to see some contemporary writing about that particular phrase.
Saturday January 29th 2011, 3:37 PM
Comment by: Jane B. (Winnipeg Canada)Top 10 Commenter
Oops! I think there must have been some thinking among some of the colonials...

Sorry about that!
Saturday January 29th 2011, 4:25 PM
Comment by: Cameron Reddy (Ann Arbor, MI)
William,

I felt, and still feel, that this is an inappropriate forum in which the conversation should degrade to attacking a person's ethics, intellectual or otherwise. Similarly, here is not the place to debate the merits of arguments regarding the Second Amendment's grant of a personal right, save the discussion of the linguistics of the text.

"One does not bear arms against a rabbit. . . ." is actually what Mr. Will said. Mr. Baron appears to have incorrectly reproduced the quote. And it is a distinction that makes a difference. It may be true that, ordinarily, one does not bear arms against a rabbit, it is certainly NOT true that it cannot be done. I know people who have had to bear arms against an onslaught of rabbits and other like rodents. You might be surprised to know that, in some parts of the country, prairie dog hunting is great sport. That certainly constitutes bearing arms against small rodents. And if you don't think that's warlike, just ask the prairie dogs.
Tuesday March 1st 2011, 4:13 PM
Comment by: Dennis B. (Urbana, IL)Visual Thesaurus Contributor
Update: On Mar. 1, 2011, the Supreme Court ruled unanimously in FCC v AT&T that corporations, though persons under the law, do not have "personal privacy." CJ Roberts, in his opinion, writes, "We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word 'personal' to describe them. . . . In fact, we often use the word 'personal' to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, per- sonal opinion and a company’s view."

And--so that you know that I'm not the only snarky language commentator--the Chief Justice ends his opinion with a little joke: "[P]ersonal privacy does not extend to corporations. We trust that AT&T will not take it personally."
Tuesday March 1st 2011, 10:05 PM
Comment by: Jerry T. (Fleetwood, PA)
Cameron R's suggestion to "ask the prairie dogs" is a great example of what happens when animism becomes the philosophy of fuzzy thinking humans. Our forefathers understood the concept of a presuppositional apologetic based on an external source of morality--the Bible. In this schema, humans have eternal worth. Prairie dogs do not. To "bear arms" as a means of protecting the valuable lives of kith and kin is surely more important than to allow a cabal of heathen criminals to run roughshod over those who have as their goal the preservation of a good society and a constant desire to order it for the benefit of all citizens who love life and liberty. Just for the record, it should be noted that for some 38 years now, not one of my guns has ever risen from it's case to kill me in my sleep. Nor have the prairie dogs travelled to the East coast to nibble me to death on my bed.

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