The Swami’s back with more vaticinations and haruspications

[Blogmeister’s Note:  We welcome back our resident odds-making courtside observer, Kevin Goldberg, a/k/a the Swami, who tells it like it is and how his crystal ball thinks it will be.  This time out the Swami reports on a FOIA face-off in the Supreme Court between the FCC and AT&T in January.  With Sunshine Week – the national celebration of open government – just around the corner, Kevin thought this would be a good time to reveal his prediction.  Spoiler alert: the Swami’s liking the FCC in this one.]

Are corporations people? Are they entitled to “personal privacy”? Those were some of the questions thrashed out in oral argument before the Supreme Court last month, in a case in which the FCC happened to be one of the parties. I was there on behalf of our client, the American Society of News Editors (ASNE), which had joined with several other media organizations in an amicus brief in the case, but given the issues in the case, you really had to wonder why any of us – including the parties and the Court itself – were there at all.

The case is FCC v. AT&T, Inc. It started back in 2004, when the FCC opened an investigation into whether AT&T had violated the FCC’s E-Rate program. It collected various documents from AT&T, some of which apparently went beyond unflattering into downright embarrassing.   The matter was eventually settled, with AT&T paying a fine.

CompTel, an association of communications service providers and their supplier partners (including some AT&T competitors), wasn’t satisfied.

CompTel filed a Freedom of Information Act (FOIA) request for copies of all pleadings and correspondence in the investigation file. AT&T parried with a gambit sometimes known as a “reverse FOIA”: it asked the FCC to reject CompTel’s request because at least some of the documents at issue were exempt from disclosure under FOIA Section 7(c). That section exempts from routine FOIA treatment information the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy”.

The Commission denied AT&T’s request, paving the way for disclosure of AT&T’s documents to CompTel. AT&T appealed that denial to the U.S. Court of Appeals for the Third Circuit which, to the surprise of many, ruled for AT&T. (You can read more about the case on the website of the Reporters Committee for Freedom of the Press, in whose amicus brief ASNE joined.) The gist of the Third Circuit’s decision: a corporation may claim a personal privacy interest for purposes of FOIA Section 7(c).

So, there we were: up was down, black was white, corporations were people, and press organizations (like ASNE) which routinely find themselves opposed to the government in FOIA matters were suddenly siding with it.  It was like some bizarre joke.

Thankfully, the Justices of the Supreme Court don’t have much of a sense of humor.

As I gaze into my post-argument crystal ball, it seems clear that the Court will rule for the FCC with a 7-1 vote (8-0 being a less likely possibility and 6-2 an even less likely shot).  Why eight votes, when there are nine Justices? Justice Kagan recused herself from the case.

In fact, I’ve rarely witnessed so one-sided an argument. This thing was over before it started. The government’s counsel received only a few questions, mainly from Justice Alito, and sat down with a full six minutes of his allotted time remaining; when he used his reserved time for rebuttal, he was asked no questions at all. That almost never happens.

The Court’s treatment of AT&T’s counsel seemed to confirm the Court’s preference for the FCC’s arguments. The questions started early (within 30 seconds), hit hard, then tapered off quickly, as if the Justices got their shots in, satisfied themselves that the FCC should win, and quickly got bored.

So the Court appeared to like the government’s position – which may strike some as odd in view of the fact that it was just last year that the same Court issued a seemingly contrary decision. That would be Citizens United v. Federal Elections Commission, one of the most controversial decisions in recent years, in which the Court concluded that corporations are people for purposes of political advocacy and the First Amendment.

Here’s how I figure it:

First, I see a very solid six votes for the FCC.

Start with Justice Scalia, who loves two things above all else: plain language and original intent. The transcript of the oral argument in the AT&T case is riddled with illustrations of his mindset (like when he says that the phrase “personal privacy of a corporation” is a “very strange phrase to me”). That’s not a good sign for AT&T.

Since Chief Justice Roberts and Justice Thomas generally share this preference for plain statutory language, I think it’s safe to put them on the FCC’s side along with Scalia.

Justice Breyer was clearly skeptical as well, at one point asking AT&T’s attorney whether he could think of any examples where the government has asserted a personal privacy right under this exemption. The inevitable “No” response sealed his vote, and probably Justice Sotomayor’s as well. That would be two more votes for the government.

Justice Ginsburg seemed especially unconvinced by any of AT&T’s arguments about the supposed original “understanding” of this exemption.  One more pro-FCC vote there, giving us six solid in that category.

Justice Kennedy was a little tougher to read, mainly because he didn’t ask many questions. However, those he did ask were very similar: all were intended to clarify the distinction between a corporation acting in its own interest, on the one hand, and acting in the interest of, say, its employees, on the other. He seemed to be trying to confirm that: (a) employees can protect themselves when necessary; and (b) the corporation can raise other objections (such as whether the agency followed its own procedures). If he’s convinced that both of those are “yes”, he should be voting with the FCC (although, of these seven, he’s the most likely to go the other way).

I’m predicting that only Justice Alito will vote for AT&T. He seemed the most sympathetic to AT&T’s arguments, engaged in the most antagonistic questioning of the government’s attorney and, generally, is the most willing of the conservative judges to throw aside the “originalism” principle in favor of a particular result, especially where corporations are involved. Toss in the fact that he was previously a judge on the Third Circuit and, therefore, might be inclined to side with his former colleagues, and he’s the most solid vote for AT&T.

So you heard it here first: the Swami’s calling this one a romp for the FCC and the government. Shoot, I’m so confident about the prospects of an FCC victory here that I’ll toss in a bonus prediction: look for Justice Scalia to write the majority opinion.

[A closing observation on jumping into bed with the enemy:  In FOIA litigation, folks on the side of the press normally find themselves at odds with the government. No surprise there: the press usually wants FOIA access to materials that the government doesn’t want to cough up. But in FCC v. AT&T, the FCC was happy to make the contested materials publicly available, so it made sense for press interests to support the Commission. However, the government’s counsel demonstrated why, even in such situations, the government isn’t the most reliable of allies. The government’s lawyer was asked by Justice Scalia whether FOIA exemptions should be construed narrowly. The simple answer could and should have been “Yes, of course” – since that would have been consistent both with the FCC’s position in this case and with earlier Supreme Court decisions regarding application of FOIA exemptions. But instead, the government’s counsel hedged, responding that FOIA exemptions “are to be given meaningful reach”. While that approach won’t help the government in this particular case, it’s likely to come in handy for the government in about 99% of the FOIA cases coming down the pike – including the Supreme Court’s soon-to-be-issued decision in another FOIA case, Milner v. Department of the Navy).]