Constitutional Perspectives: Few Rights and Even Fewer Privileges

• Author: Miriam Weismann
• Pages: 45-63

45

C 4

CONSTITUTIONAL

PERSPECTIVES

FEW RIGHTS AND EVEN

FEWER PRIVILEGES

This chapter addresses t he status of corporat ions and other business organ izations

under the Fourth, Fif th, and Sixth Amendments to the U.S. Const itution. Here, the

legal definition of a corp oration as a “person” shrinks back i nto its more fictional

existence; meani ng that business organi zations may share equally w ith individua l

persons in terms of exposure to cr iminal liability but the y do not share equally in the

same constitutional protections.

The Supreme Court’s decision in Hale v. Henkel, 201 U.S. 43 (1), establ ished

both the logic and the ba sic ground rules for the development of corporate and orga-

nizational const itutional rights a nd it remains the law today. There, the Court held

that a corporation could ass ert the constitutiona l protections of the Fourt h Amend-

ment to prevent the government from engaging in un reasonable searches and seizures

of its records but that it could not assert t he protections of the Fifth Amendment and

refuse compelled production of the sa me records. No, to a Fifth A mendment privi-

lege against compulsory s elf-incrimination and yes, to a Four th Amendment privi-

lege against unrea sonable searches and seizures.

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46 Constitutional Perspectives

Arguably, the case ma kes some sense in economic terms. A corporate assertion

of the privilege agai nst self-incrimination could have t he impact of frustrat ing the

government’s need to prosecute corporate unlawfu l economic activity. However,

because the Fourt h Amendment is aimed at u nreasonable government intru sions,

allowing a corpor ation a Fourth Amendment priv ilege would not necessari ly insu-

late the company from prosecution. In any ca se, in those instances where the Four th

Amendment has provided too much protection, the court s have created excep-

tions, such as the admi nistrative sea rch doctrine a nd others, to dilute the scope of

protection.

I. The Fifth Amendment

Corporations have no Fifth A mendment privilege against compul sory self-incrimi-

nation. But incorporation is not the only form of busines s organization. No matter;

other forms of busi ness organizations have no su ch constitut ional protect ion either.

In United States v. White,  U.S. , – (), the Supreme Court upheld a

records subpoena demanding the production of un ion records. The Court held that

“the power to compel the production of the records of any organi zation, whether it be

incorporated or not, arise s out of the inherent and necessary power of the federal a nd

state governments to enforce their laws.” Bottom line: T he Fifth Amendment’s pro-

tection applies only to natura l individuals acting i n their own private capacity and in

some cases as a sole proprietor, but not to an organization.

A. Defining “Organization”

The Court did provide a def inition for the term “organizat ion”: “The test . . . is

whether one can fairly s ay under all circumstances t hat a particular ty pe of organiza-

tion has a character so impersona l in the scope of its membership and activities that

it cannot be said to embody or represent t he purely private or personal interests of its

constituents, but rather to embody t heir common or group interests only.” Bottom

line: If the organi zation satisfies this defin ition, organizational records must be pro-

duced even if they are persona lly incriminating to the member ship.

The definition of organizat ion has been used liberal ly in barri ng the assertion

of the privilege agai nst self-incriminat ion by other noncorporate forms of business

organiz ations. In Bellis v. United States,  U.S. , – (), the Court upheld a

subpoena issued to a three-person law fi rm. The Court concluded that “groups” can-

not assert the privi lege if they are “relatively well organi zed and structured, and not

merely a loose, informal association of individuals. It must maintain a distinct set

of organizational rec ords, and recogniz e rights in its members of control a nd access

to them.” Bottom line: Size does not matter. If it looks like a duck and quacks like a

duck. . . .

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