As required by the November 18, 2014 order, the parties in NAM v. SEC filed briefs responding to questions about the First Amendment issue that were posed by the Court of Appeals.  This post summarizes the briefs filed by the parties that want the product description requirements of the conflict minerals rule to be upheld. 

Brief of the SEC

On December 8, 2014, the SEC filed its Supplemental Brief, in which it argues that the product description requirement of the conflict minerals rule does not violate the First Amendment.  The SEC argues that the limited scrutiny of Zauderer is the appropriate test to review the required disclosure in this case and that the product description required by the conflict minerals rule is “factual and uncontroversial” and is therefore constitutional. 

The SEC’s arguments are: 

  1. The product descriptions are “factual” because they are objectively determinable by concluding that the facts fit a particular definition included in the conflict minerals rule and are not merely a matter of opinion.  The product descriptions are “uncontroversial” even if the topic discussed is controversial and even if the company making the statement would rather remain silent.  The SEC also questions NAM’s argument that the required product description leaves consumers with a misleading impression of a connection between the product and the conflict in the Congo.
  2. Even if Zauderer did not apply here, the disclosure requirements would survive the intermediate scrutiny of Central Hudson.  The product description requirements are “reasonably crafted,” and issuers are permitted to include additional statements to provide their own message about the product and the conflict minerals compliance process.

Brief of Amnesty International

On December 8, Amnesty International filed its Supplemental Brief as well.  In its brief, it argues that in light of the decision in American Meat, the limited scrutiny of Zauderer applies in this case.  It argues that the product description required by the conflict minerals rule is factual and uncontroversial, stating that it is possible for a product description to be accurate and truthful even if the message it communicates is controversial.  It argues that a statement of “not been found to be ‘DRC conflict free’” is merely a statement about the results of the company’s investigation and does not indicate moral culpability in the armed conflict in the Congo.

Brief of Global Witness and Free Speech for People

Global Witness and Free Speech for People filed a brief of amici curiae, in which they argue that the product description required by the conflict minerals rule is a statement of fact regardless of the subject matter of the statement and regardless of any reaction that others might have to that statement.