Nat'l Ass'n of Mfrs. v. SEC

419 U.S. App. D.C. 158, 800 F.3d 518 (2015)



The U.S. Supreme Court has treated Zauderer as a decision permitting the government "at times" to prescribe what shall be orthodox in commercial advertising by requiring the dissemination of purely factual and uncontroversial information. Outside the context of commercial advertising, a speaker has the right to tailor speech and that this First Amendment right applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid. This constitutional rule is enjoyed by business corporations generally.


This case involved a rehearing of the petition filed by the Securities and Exchange Commission (SEC) and intervenor Amnesty International in light of the Court’s decision in American Meat Institute v. U.S. Department of Agriculture. Under American Meat Institute, the Court held that the federal government had not violated the First Amendment when it forced companies to list on the labels of their meat cuts the country in which the animal was born, raised, and slaughtered. In the case at bar, the SEC and Amnesty International asked the Court to reconsider the effects American Meat Institute had on their previous judgment that the conflict minerals disclosure requirement in 15 U.S.C. § 78m(p)(1)(A)(ii) & (E) (“Conflicts Minerals Rule”), and the Commission's final rule, 77 Fed. Reg. 56,274, 56,362-65, violated the First Amendment to the Constitution. The Conflicts Minerals Rule required manufacturers of commercial products to disclose information to the public about the composition of their products, in particular, sourcing information about component minerals contained in the products. the Rule also required website disclosures about a company's products with an eye towards a potential commercial purchase.


In light of the Court’s decision in American Meat Institute v. U.S. Department of Agriculture, can the Court’s previous decision holding that the conflict minerals disclosure requirement in 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), and the Commission's final rule violated the First Amendment to the Constitution still stand?




The Court held that 15 U.S.C.S. § 78m(p)(1)(A)(ii) and (E), requiring disclosure of the use of "conflict minerals," and an implementing rule, violated the First Amendment under either strict scrutiny or Central Hudson's intermediate test, because the SEC did not adequately identify an underlying governmental interest. According to the Court, the decision in American Meat Institute cannot apply to the case at bar even if the compelled disclosures were commercial speech. The Court posited that the SEC did not show the rule it adopted would alleviate the harms it asserted and its identification on whether a product was "conflict free" was not factual and non-ideological. As such, the Court upheld its previous decision as regards this case.

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