compelled speech 1st amend BS

see SEC ESG

BGH?

label cigs? GMO?

is discovery compelled speech? see bakst

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mta movie mtg 5 26

Corporate “rights” used to challenge regulation

Corporations have used constitutional claims (First, Fifth, and Fourteenth Amendments) to fight rules.

Examples relevant to PFAS-type harms:

Challenging mandatory disclosure of chemical risks (First Amendment “compelled speech”)

Arguing regulations are a “taking” of property under the Fifth Amendment

Claiming unequal treatment under the Fourteenth Amendment

👉 Result: Agencies like the EPA face constant legal barriers when trying to restrict harmful chemicals.

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minnesota

Federal Constitutional Challenge

In Cookware Sustainability Alliance v. Kessler,manufacturers of products containing intentionally added PFAS filed a lawsuit against the Commissioner of the MPCA, seeking to strike down Amara’s Law as unconstitutional. The lawsuit was brought in the Federal District of Minnesota by the Cookware Sustainability Alliance (the “CSA”), a non-profit trade organization whose members are leading manufacturers of non-stick cookware, a product that commonly contains intentionally added PFAS and is subject to Phase I prohibitions. See Minn. Stat. § 116.943, subd. 5(a)(3). The CSA challenged the constitutionality of Amara’s law on three grounds:

(1) that the Phase I and Phase III prohibitions violate the Commerce Clause of the U.S. Constitution by imposing restraints on trade that constitute overt discrimination against out of state manufacturers to the benefit of in-state manufacturers or, alternatively, that such restraints on trade imposes a burden on interstate commerce that is excessive relative to the local benefits accomplished by Amara’s Law;

(2) that the Phase II disclosure requirement compels speech in violation of the First Amendment to the U.S. Constitution; and

(3) that the Phase II disclosure requirement is preempted by federal trade secret protection laws and, therefore, violates the Supremacy Clause of the U.S. Constitution.

The CSA immediately moved for a preliminary injunction, asking the U.S. District Court for the District of Minnesota to enjoin the MPCA from enforcing Phase I of Amara’s law pending the litigation. Judge Tunheim denied the CSA’s motion, noting that the CSA’s arguments that Phase I of Amara’s Law violates the Commerce Clause are “highly unlikely” to prevail. See Cookware Sustainability All. v. Kessler, No. 25-41, 2025 U.S. Dist. LEXS 33248, at *10, *14 (D. Minn. Feb. 25, 2025).

Following Judge Tunheim’s ruling, the Commissioner moved to dismiss the CSA’s action in its entirety, arguing that “[n]one of the Alliance’s claims are legally viable.” The court has not yet ruled the CSA’s challenges against Phase II of Amara’s Law, and the case is proceeding.

THE ROOT

...The Bill of Rights Institute is funded by the Koch brothers … tax-free.

So what does the Bill of Rights Institute teach?

Almost every lesson plan stresses the conservative idea of the limited role of government, best explained by this quote from the lesson on “The Limited Role of Government”:

Perhaps the most definitive limitations on government are found in the Bill of Rights. A firewall protects a computer from outside attempts to harm it, so too does the Bill of Rights guard fundamental rights, natural and civil. In fact, far from most Americans’ popular understanding of the Bill of Rights as a “giver” of rights (ask most Americans where they get their right to free speech and the answer will almost always cite the First Amendment), it is actually the “limiter” of government authority.

According to the lesson plan titled “Health Care and the Bill of Rights,” it “focuses on the health care law from multiple constitutional perspectives.” Here are the “multiple” constitutional perspectives:

Religion: The lesson includes two articles examining cases where the Affordable Care Act is said to violate religious freedom.

Expression: Asks if it is a violation of the First Amendment to require restaurants to include calorie counts.

Personal liberty: Students get to read about the ACA’s abortion coverage.

Criminal procedure: How you might be criminalized if you don’t purchase health care.

Federalism: How Obamacare is indicative of big government.

...

ggl ai 5 26

AI Overview

PFAS ("forever chemicals") are linked to significant health risks, including cancer and organ damage. When governments mandate that companies disclose the presence of these chemicals on product labels or in reporting databases, industries frequently challenge these laws using the First Amendment, arguing that compelled disclosure constitutes unconstitutional compelled speech. [1, 2, 3, 4]

The Conflict Between Disclosure and the First Amendment

Public Health vs. Commercial Speech: Government agencies justify mandatory chemical disclosures as a way to protect public health and ensure consumers have the information needed to make informed choices. [1]

The Zauderer Standard: Under Zauderer v. Office of Disciplinary Counsel, compelled commercial disclosures are generally upheld if they are purely factual, uncontroversial, and reasonably related to a legitimate state interest (such as preventing consumer deception). [1, 2]
Industry Challenges: Industry groups frequently challenge these regulations, arguing that compelling them to list the presence of PFAS constitutes unconstitutional compelled speech, especially when the disclosures are deemed controversial or when the link between trace chemical exposure and specific health outcomes is debated. [1, 2]

First Amendment Expansion: As First Amendment protections for commercial speech have expanded, courts are increasingly receptive to challenges that view forced disclosures—ranging from environmental impacts to chemical components—as political or burdensome. [1, 2]

Core Legal Arguments

Uncontroversiality: Challengers argue that labeling chemicals like PFAS is controversial due to debates over the definition of the chemicals, acceptable exposure thresholds, and the exact nature of the health risks. [1, 2]

Compelled Speech: Companies argue that forcing them to put warnings or declarations on their products or public filings effectively forces them to convey messages they do not wish to express.

Rational Basis vs. Strict Scrutiny: The core legal battleground focuses on the level of review applied by courts. Governments fight for a more deferential rational basis test under Zauderer, while industry challengers advocate for stricter scrutiny. [1, 2, 3]

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~ ESG // conflict minerals 1st maned free sp BS?

https://globalfreedomofexpression.columbia.edu/cases/national-assn-of-manufacturers-v-securities-and-exchange-commission/

Global Freedom of Expression is available on our Credits page.

CASE ANALYSIS

Case Summary and Outcome

The U.S. Securities and Exchange Commission (SEC) required companies to disclose on their websites and in reports to the SEC whether they used minerals from African regions in conflict (conflict disclosure). The U.S. Court of Appeals ruled that the label was compelled speech, which the government failed to show would reduce violence in the Democratic Republic of the Congo (DRC), and thus it violated the companies’ free speech rights. The current case reviewed the U.S. Court of Appeal’s earlier ruling on the disclosure in light of a decision that allowed the government to compel meat companies to put origin of production labels on their products. The court upheld its earlier ruling, stating that the meat label case did not apply since the conflict disclosure label did not deal with advertisement or point of sale issues.

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Facts

The 2010 Dodd Frank Wall Street reform law included a provision requiring public companies to disclose on their websites and in reports to the SEC whether the products they produce include materials from war torn regions of Africa, specifically the DRC.

The National Association of Manufacturers (NAM) challenged the law arguing that the SEC adopted the costliest rule and rejected alternative regulation (administrative procedure). NAM also argue that the law’s requirement to place a “conflict free” label was compelled speech that violated the First Amendment.

In June 2013, the U.S. District Court for the District of Columbia ruled against NAM on both arguments. On April 14, 2014, the U.S. Court of Appeals upheld the district court’s ruling on the administrative procedure issue, but rejected its ruling on the compelled speech issue. On August 18, 2015, the U.S. Court of Appeals reheard the case on the First Amendment issue per the requests of the SEC and Amnesty International in light of this court’s intervening decision in the case of American Meat Institute v. U.S. Department of Agriculture,760 F.3d 18 (AMI) and its application of the Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio,471 U.S. 626 (Zauderer). The AMI case ruled that the federal government did not violate the First Amendment when it compelled companies to place country of origin labels on their meat.

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Decision Overview

The decision overview is based on the most recent court decision on the First Amendment compelled speech issue.

The main issue in this case concerned the purpose of the conflict minerals label. Defining the purpose allows the court to pick what test to apply in judging the constitutionality of compelled speech. If the purpose of compelled speech related to voluntary commercial advertising then a more relaxed test listed in Zaudererand used in AMI, the meat labeling case, could be applied. The Zauderertwo part test required that (1) the government’s compelled speech advances a substantial interest, and (2) the compelled speech was reasonably related to the government’s substantial interest.

If the compelled speech was for commercial speech for other purposes, then the court would apply the test listed in the Central Hudson Gas & Electric Corp. v Public Service Commission, 447 U.S. 557. The Central Hudson test requires governments to show (1) substantial government interest (2) directly and materially advanced by the restriction (3) and that the restriction is narrowly tailored.

The court ruled that the conflict minerals disclosure did not deal with voluntary commercial advertising or points of sale since it required companies to disclose on their websites and reports to the SEC. Thus, the Zauderer test did not apply. The court reiterated that in its prior judgment on this case, it did not decide whether to apply the strict scrutiny test or the CentralHudsontest because the labeling requirement violated CentralHudson‘s requirement that the restriction be narrowly tailored as the government did not provide evidence that less restrictive means would fail the purpose of the regulation. Despite its early ruling that the label was unconstitutional, the court nonetheless went through the application of the AMIand Central Hudsontests since it felt that there was too much uncertainty in the legal reasoning of applying the tests.

First, the court determined that the substantial interest required by both the AMIandCentral Hudsonwas to ameliorate the humanitarian conflict in the DRC. The court identified the substantial interest from the SEC’s appellate briefs.

The court then evaluated the effectiveness of the measures to achieve the substantial interest. The court explained that the government offered little evidence in this regard and dismissed the government’s assertion that the regulation was based on a value judgment of common sense in a foreign affairs matter and that foreign relations judgments are not always made on concrete evidence. The court reiterated that this was speculation and conjecture, lacking quantifiable evidence, and although the label might have positive effects, the lack of evidence was not enough to compel speech under the First Amendment.

The court also reviewed the compelled disclosure in this case against the AMIholding that compelled disclosure must be purely factual and uncontroversial. The court explained that there was no clear definition as to what “purely factual and uncontroversial” meant, only that “uncontroversial” must have meant something different than purely factual. The court explained that something factual and uncontroversial presently may be different in the future, citing the example of new findings regarding the effect of eggs on cholesterol levels in people after new studies. The court also explained that a controversy was a dispute, especially a public one. However, the court failed to offer a specific definition or a test of the “factual and uncontroversial” legal standard.

Lastly, the court ruled that even if the government statutorily defined “conflict free”, it was not enough to withstand constitutional review ofcompelled speech. This is because ruling otherwise would allow the government to compel companies to use certain speech simply by defining it, which in turn would allow the government to skew public debate in certain directions by using certain definitions.

The court concluded that the labels “conflict free” or “not conflict free” were hardly factual and non-ideological because they conveyed a moral responsibility for the Congo war on companies that only indirectly finance armed groups. [more]

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mar 2014

Legal experts take opposing views on SEC's climate disclosure rule and the First Amendment - Thomson Reuters Institute

The SEC’s climate rules, which were released March 6, are out, and the opposition to them through the courts that use the First Amendment as the basis for litigation is still likely

:{:{Debate has intensified over whether the U.S. Securities and Exchange Commission’s (SEC) newly released climate disclosure rules might be derailed by First Amendment legal challenges. The focus on the First Amendment comes after industry groups [brought a lawsuit](}:

https://nam02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fgo-ri.tr.com%2Fr1otbQ&data=05|02|natalie.runyon%40thomsonreuters.com|e6053633906440fc5ead08dc32218cce|62ccb8646a1a4b5d8e1c397dec1a8258|0|0|638440366888349416|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D|0|||&sdata=pqi1JdkcDNkQi%2Fz28NEz1zYyz5MEXk1xSMsnXsIJrws%3D&reserved=0)

against California’s recent climate disclosure laws, arguing that the rules force companies to engage in “compelled speech” that is unconstitutional.}:

:{:{SEC chair Gary Gensler said in February that the regulator is taking account of court decisions over its past rulemaking in crafting its final regulation for climate disclosure. In particular, he noted a recent [decision from the U.S. Court of Appeals for the Fifth Circuit](}:

https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.uschamber.com%2Fassets%2Fdocuments%2FFiled-SEC-Buyback-Opening-Brief-and-Exhibits-A-C.pdf&data=05|02|natalie.runyon%40thomsonreuters.com|e6053633906440fc5ead08dc32218cce|62ccb8646a1a4b5d8e1c397dec1a8258|0|0|638440366888334349|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D|0|||&sdata=ahQ%2FbfyuqTcSftVbElcsiBmWUljW7AKOtlqOGrJtee4%3D&reserved=0)

that rejected the argument made by industry trade groups that the SEC’s stock buyback rule, established in May 2023, violated the First Amendment. The groups said the agency’s stock buyback rule, which required companies to report day-to-day share repurchase data once per quarter, violated the First Amendment by impermissibly compelling their speech.}:

Legal experts noted that the First Amendment has become the preferred tool for industry groups in recent cases when objecting to proposed regulations that are deemed “controversial.” In a note to clients, the law firm Cooley wrote: “The First Amendment claim is certainly one that we have seen used successfully in the past and are likely to see again.”

Legal experts noted that the First Amendment has become the preferred tool for industry groups in recent cases when objecting to proposed regulations that are deemed “controversial.”*

The suit against California’s recent climate disclosure laws, the U.S. Chamber of Commerce and other industry groups allege that the rules violate constitutional rights by compelling companies to engage in non-factual, costly speech on climate change, a controversial political matter.

“The industry has had some recent success with this concept by arguing that ‘the government is requiring me to make statements about my business that are controversial and because of that you can’t force me to make those statements since they violate my First Amendment rights,'” said Bill Tarantino, a partner with Morrison Foerster in San Franciso. “I think there are judges out there who would adopt that view, including the current Supreme Court.” However, legal scholars differ on whether the First Amendment provides plaintiffs with a solid case to challenge regulations brought by federal agencies such as the SEC.

Proponents of First Amendment argument

Some experts argue that the SEC’s constitutional authority relies upon Supreme Court precedent granting deference to the regulation of commercial speech, which is involved in the purchase or sale of a good or service. Such speech receives less First Amendment scrutiny so that the government can enact laws that protect consumers. The SEC’s mandatory disclosure regime, as it involves the purchase and sale of securities, operates under this paradigm.

“But there is a catch,” explained Sean Griffith, professor at Fordham Law School, in a [recent paper](https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcorpgov.law.harvard.edu%2F2022%2F06%2F17%2Fwhats-controversial-about-esg-a-theory-of-compelled-commercial-speech-under-the-first-amendment%2F&data=05|02|natalie.runyon%40thomsonreuters.com|e6053633906440fc5ead08dc32218cce|62ccb8646a1a4b5d8e1c397dec1a8258|0|0|638440366888371784|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D|0|||&sdata=8J6KtV4z2oAEkFMvdeI0Xf%2Bk05hCK3esMpO3fdClWRo%3D&reserved=0). “Regulations compelling commercial speech receive deferential review only when they are purely factual and uncontroversial. The uncontroversial requirement works to ensure that the regulation is motivated solely to protect consumers.” In the case of the SEC’s climate disclosure rule, there is a clear argument that the regulation is “controversial,” Griffith wrote, because the regulation imposes a “political viewpoint.”

Critics of First Amendment argument

Not all share Griffith’s viewpoint, however. What might be critical in any legal challenge that relies on the First Amendment is the U.S. Supreme Court’s 1985 opinion in [Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio](https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fsupreme.justia.com%2Fcases%2Ffederal%2Fus%2F471%2F626%2F&data=05|02|natalie.runyon%40thomsonreuters.com|e6053633906440fc5ead08dc32218cce|62ccb8646a1a4b5d8e1c397dec1a8258|0|0|638440366888388867|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D|0|||&sdata=5ufOLSp83kpM3CsKZAsEoF9CnW8M%2BK%2BS31cBJBifwC0%3D&reserved=0). In the case, the Supreme Court said the government may compel a commercial disclosure that is “factual and uncontroversial… as long as disclosure requirements are reasonably related to the [government] interest” and are not unduly burdensome on further speech.

Rebecca Tushnet, a professor at Harvard Law School, sees the SEC’s climate disclosure rule requiring “purely factual information about business operations, such as an issuer’s own estimates of its climate-related risks. And because the mandated statements would be purely factual, they are considered uncontroversial when measured against the Supreme Court’s decision in the Zauderer case.

:{:{“The disclosures here would not force companies to take a position on the regulation of greenhouse gas emissions, endorse any ideological position on climate change, or make any moral statements. The issue of climate change may provoke disagreement, but climate disclosures reflect objective realities affecting businesses,” Tushnet wrote in a [paper with other legal experts](}:

https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fdemocracyforward.org%2Fwp-content%2Fuploads%2F2022%2F07%2FLaw360-SECs-Climate-Rule-Is-Compatible-With-The-1st-Amendment.pdf&data=05|02|natalie.runyon%40thomsonreuters.com|e6053633906440fc5ead08dc32218cce|62ccb8646a1a4b5d8e1c397dec1a8258|0|0|638440366888399705|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D|0|||&sdata=Qot6wTSyvD9L3RkrOiSFc0bFFI20SldI5y%2BQjcSsZx0%3D&reserved=0).}:

Other legal scholars share a similar view. In its [comment letter](https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fknightcolumbia.org%2Fdocuments%2Fuv7kb8b2or&data=05|02|natalie.runyon%40thomsonreuters.com|e6053633906440fc5ead08dc32218cce|62ccb8646a1a4b5d8e1c397dec1a8258|0|0|638440366888413040|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D|0|||&sdata=kV8qCsQbOQ4ZU5IkkifimVVjP1Xrk4xgvI1iyV0aGRg%3D&reserved=0) to the SEC, the Knight First Amendment Institute at Columbia University also cited the Supreme Court’s decision in the Zauderer case as a guide.

“The [SEC’s] rules satisfy the predicates for Zauderer review because they require the disclosure of factual and uncontroversial information about the risks associated with securities that companies offer to the investing public,” the Institute wrote. “If the proposed rules trigger First Amendment scrutiny at all, they should be evaluated under the deferential standard of review that applies to compelled disclosures of factual information in the commercial context. The proposed rules appear to easily satisfy that standard.”

SEC needs to prepare for battle

Leaving aside the legal arguments on whether using the First Amendment will be an effective tool in the courts, the environment and recent court cases show that there has been momentum behind efforts to limit the rulemaking powers of federal agencies such as the SEC and others, or what some critics refer to as the administrative state.

:{:{“No matter what the SEC does, it is likely to face a protracted legal battle when the rule is finally promulgated,” wrote the Sabin Center for Climate Change Law in a [recent report](}:

https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fblogs.law.columbia.edu%2Fclimatechange%2F2023%2F12%2F11%2Fthe-secs-final-climate-disclosure-rule-must-respond-to-emerging-legal-risks%2F%23%3A_{%3Atext%3DFirst%2520Amendment%2520Challenges%2Creview%2520under%2520the%2520Zauderer%2520standard&data=05|02|natalie.runyon%40thomsonreuters.com|e6053633906440fc5ead08dc32218cce|62ccb8646a1a4b5d8e1c397dec1a8258|0|0|638440366888425272|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D|0|||&sdata=xI2gJg7A8OzkU4ssKEM%2FFS5Ir24YKTWNk%2BccBIzyQDY%3D&reserved=0)}.

“Indeed, the rule is an appealing target for challengers seeking to limit government action and attempting to push legal boundaries in Administrative Law and under the First Amendment.”}:

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