Cass Sunstein: Court Should Get Out Of The Way Of Conflict Minerals Disclosure Rule

Harvard Law School professor and former White House regulatory director Cass Sunstein has written an important post about the ongoing “conflict minerals” case and its implications for democracy.

In August, a three-judge panel of a federal appellate court in Washington, D.C. struck down a federal rule designed to provide information about publicly traded companies’ reliance on conflict minerals from the war-torn Democratic Republic of the Congo. According to the court, the rule violates the First Amendment rights of these corporations. Free Speech For People, along with our amicus partner Global Witness Limited, had filed an amicus brief arguing against the corporate “free speech” claim. The full court is currently weighing whether to review the panel’s decision.

The panel struck down the rule because it required disclosure on a web site (rather than on product advertising or labels) and because labeling a product as not certified conflict-free conveys a “taint.” But as Sunstein explains, this reasoning leads to absurd results:

“The potential implications of the court’s ruling are far-reaching. Fuel economy labels must contain information about greenhouse gas emissions. Climate change is of course controversial. Are fuel economy labels now unconstitutional, because they force sellers to “taint” their own products?

Under the Occupational Safety and Health Act, employers have long been required to provide safety warnings for employees. Does this requirement invade freedom of speech, because advertising and labels aren’t involved?

If you look at your credit card bill, you’ll immediately find a lot of disclosures, and some of them are mandated by law. Is that a constitutional problem, because bills are not product labels?”

Sunstein’s key conclusion:

The free speech principle is designed, above all, to ensure that We the People can govern ourselves. When Congress increases the flow of information by requiring companies to disclose information, courts should be reluctant to stand in its way.

For more on Free Speech For People’s efforts in this and other litigation, click here.

 

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