Antonin Scalia, past and present, had a starring role at today’s Supreme Court arguments in Federal Communications Commission v. AT&T. And I couldn’t help but be reminded of Scalia’s past views on the Freedom of Information Act, views definitely off-stage.
As I explain in this article, the FCC was appealing a lower court decision that would allow corporations to claim a “personal privacy” exemption under the FOIA law intended to make government more transparent. That exemption traditionally has been given only to individuals for potentially embarrassing situations.
In the government’s brief and at a couple of points Wednesday, the attorney for the FCC invoked a 1975 memo by former Attorney General Edward Levi (for whom Scalia worked in the mid-1970s) supporting the view that the disputed provision did not cover corporations. Scalia declared Wednesday that that view had stuck.
The FCC also in its brief had quoted then-Professor Scalia from 1981, testifying that FOIA’s exemption for unwarranted invasions of “personal privacy” protects only individuals.
But what went unsaid — and wasn’t relevant to the case — was Scalia’s long-held opposition to FOIA before he became a judge. In the 1970s, he derided the law as costly and a distraction for government workers asked to fulfill public requests for information. He said the act’s flaws “cannot be cured as long as we are dominated by the obsession that gave them birth — that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press.” Scalia was among a small band of Ford administration officials, including Dick Cheney, who fought the FOIA amendments Congress adopted in 1974.
Years later at a congressional hearing, Scalia, as professor, explained his continuing opposition to FOIA by referring to a Peanuts cartoon that “one of the more philosophical” of his children had brought to his attention:
“A worldly wise and somewhat overbearing Lucy asks the good-hearted and somewhat naïve Charlie Brown, ‘Charlie, what would you rather do, be captain of the baseball team or marry the cute redheaded girl?’ And Charlie replies innocently, ‘Why can’t I do both?’ to which Lucy responds, ‘It’s the real world, Charlie Brown.'”
That was Scalia, aligning himself with cynical Lucy and telling lawmakers they were in the real world, which, he argued, “imposes choices, even ultimately upon a good-hearted and well-intentioned government.”