The U.S. Court of Appeals for the D.C. Circuit denied a request for a full-court rehearing of National Association of Manufacturers v. SEC, the conflict minerals case. This case involves a challenge to a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act that requires publicly traded corporations to disclose to investors and the public whether their products contain “conflict minerals” from the war-torn Democratic Republic of the Congo. An industry trade group challenged the SEC’s implementing rule, arguing that it violates these companies’ First Amendment rights not to “speak” about “controversial” matters. Free Speech For People (along with our partner Global Witness Limited) filed an amicus brief arguing against this corporate First Amendment claim. As we explained in August, the panel’s opinion is dangerous not only for what it says about the conflict minerals rule, but also for the court’s willingness to strike down any of the myriad disclosure rules that characterize publicly traded corporations and, for that matter, business in the 21st century. Professor Cass Sunstein of Harvard Law School has noted that disclosure rules ranging from fuel economy labels to employee safety warnings to credit card disclosures may be at risk.
Unfortunately, this isn’t an isolated instance. As Professor John Coates of Harvard Law School (and a member of Free Speech For People’s Legal Advisory Committee) has documented, corporate First Amendment claims (both how often they’re filed, and how often they win) have skyrocketed in recent years.
What can we do about it?
An appeal to the U.S. Supreme Court is possible, but the Supreme Court has broad discretion in deciding which cases to hear. Beyond this case, we need to start building a new jurisprudence around corporations and the Constitution, as we’re doing at our upcoming symposium at Loyola Law School in Los Angeles on November 20 on “Corporations, the Constitution, and Democracy.” We need to get the word out about how corporations are perverting the notion of free speech. And we need to mobilize the movement to pass constitutional amendments to restore our democracy by reaffirming that constitutional rights belong to people, not corporations, and empowering the people to get big money out of politics.
Read the Court’s ruling, NAM v SEC Petition for rehearing en banc denied.