Last year, Free Speech For People joined Global Witness in a brief to address the disclosure of conflict minerals from the war-torn Democratic Republic of Congo, and the First Amendment claims by the corporations contesting the law. A DC Circuit court denied a rehearing of the case en banc, but the National Association of Manufacturers (NAM) continues to fight the law requiring conflict mineral labeling. A new editorial in the Boston Globe explains the case and why “corporations can’t hide behind the First Amendment.”
Instead of lobbying Congress to change the law, the National Association of Manufacturers and other business groups went to court and argued that the rule trampled firms’ First Amendment rights by compelling them to speak — specifically, to say whether they use “conflict minerals” mined in the Democratic Republic of the Congo. Incredibly, a majority on a divided three-judge panel bought it, and struck down the rule in 2014 and again last year.
Unfortunately, this tactic of corporations citing the First Amendment to avoid disclosure laws is hardly new. And while the Securities and Exchange Commission is considering how to proceed with the case, we could witness a serious expansion of corporate free speech rights if the ruling stands. What’s worse, the willingness of the courts to prioritize corporate rights over consumer and investor protections could potentially “call into question a range of mandatory requirements, from fuel-economy labels on cars to disclosures on credit card bills.”
The attack on the conflict-mineral rule is part of a larger effort to co-opt the First Amendment into an antiregulatory tool. And the Obama administration’s Justice Department can help stop it by appealing the three-judge panel’s flawed ruling to the Supreme Court by the April 7 deadline.
The companies are seeking to curtail two longstanding, common-sense legal concepts. First, the understanding that although there are some limited protections for commercial speech, it can be regulated much more strictly than personal speech. An individual can legally lie about whether he or she has won military medals, for instance, but a company can be punished for false SEC filings.
Second, courts have held that compelling disclosure of accurate information should be viewed differently than preventing speech. Food makers can be required to put calorie labels on food, for instance, even if those labels make consumers less likely to choose Ben and Jerry’s. Companies may have to disclose to shareholders if their CEO gets into legal trouble, and other bad news that could affect stock prices.
To read the full editorial, click here.