National Ass'n of Manufacturers v. Securities & Exchange Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided August 18, 2015

No. 13-5252

NATIONAL ASSOCIATION OF MANUFACTURERS, ET AL.,

APPELLANTS

v.

SECURITIES AND EXCHANGE COMMISSION, ET AL.,

APPELLEES

On Petitions For Panel Rehearing

Peter D. Keisler, Jonathan F. Cohn, Erika L. Maley, Steven

P. Lehotsky, Quentin Riegel, and Rachel L. Brand were on the

briefs for appellants.

Michael A. Conley, Deputy General Counsel, Securities and

Exchange Commission, Tracey A. Hardin, Senior Counsel,

Benjamin L. Schiffrin, Senior Litigation Counsel, and Daniel

Staroselsky, Senior Counsel were on the briefs for appellees.

Scott L. Nelson, Julie A. Murray, and Adina H. Rosenbaum

were on the briefs for intervenors-appellees Amnesty

International USA, et al.

Ronald A. Fein, David Hunter Smith, David N. Rosen, and

Jodi Westbrook Flowers were on the brief for amici curiae

2

Global Witness and Free Speech For People in support of appellees.

Before: SRINIVASAN, Circuit Judge, and SENTELLE and

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

Dissenting opinion filed by Circuit Judge SRINIVASAN.

RANDOLPH, Senior Circuit Judge: We assume familiarity

with our opinion in National Association of Manufacturers v.

SEC, 748 F.3d 359 (D.C. Cir. 2014) (“NAM”).1

The subject of this rehearing is the intervening decision in

American Meat Institute v. U.S. Department of Agriculture, 760

F.3d 18 (D.C. Cir. 2014) (en banc) (“AMI”), and its treatment of

Zauderer v. Office of Disciplinary Counsel of the Supreme Court

of Ohio, 471 U.S. 626 (1985).

Justice White, writing for the majority in Zauderer,

expressed the Court’s holding with his customary precision: we

“hold,” he wrote, “that an advertiser’s [First Amendment] rights

are adequately protected as long as disclosure requirements are

reasonably related to the State’s interest in preventing deception

of consumers.” Zauderer, 471 U.S. at 651 (italics added). In

several opinions, our court therefore treated Zauderer as limited

to compelled speech designed to cure misleading advertising.

Government regulations forcing persons to engage in

commercial speech for other purposes were evaluated under

Central Hudson Gas & Electric Corp. v. Public Service

1

For ease of reference, our original opinion and the

accompanying concurrence are reprinted in an Appendix to this

opinion after the dissent.

3

Commission, 447 U.S. 557, 564-66 (1980), rather than

Zauderer.2 See, e.g., R.J. Reynolds Tobacco Co. v. FDA, 696

F.3d 1205, 1213-17 (D.C. Cir. 2012); Nat’l Ass’n of Mfrs. v.

NLRB, 717 F.3d 947, 959 n.18 (D.C. Cir. 2013).3

Our initial opinion in this case adhered to circuit precedent

and declined to apply Zauderer on the ground that the “conflict

minerals”4 disclosures, compelled by the Dodd-Frank law and

the implementing regulations of the Securities and Exchange

Commission, were unrelated to curing consumer deception.

NAM, 748 F.3d at 370-71.

After our opinion in NAM issued, the en banc court in AMI

decided that Zauderer covered more than a state’s forcing

disclosures in order to cure what would otherwise be misleading

2

The Central Hudson standard is more demanding than

Zauderer’s but much less exacting than the Supreme Court’s doctrines

for evaluating non-commercial speech. See, e.g., Milavetz, Gallop &

Milavetz, P.A. v. United States, 559 U.S. 229, 249 (2010); Ibanez v.

Fla. Dep’t of Bus. & Prof’l Regulation, Bd. of Accountancy, 512 U.S.

136, 142 (1994).

3

See In re R.M.J., 455 U.S. 191, 203 (1982), holding that when

the commercial advertising “is not misleading” the State’s regulations,

including forced disclosures, must be tested under Central Hudson.

The Supreme Court later interpreted R.M.J. to mean that when

advertisements are “not inherently misleading,” state-compelled

disclosures are to be tested by “Central Hudson’s intermediate

scrutiny,” rather than by Zauderer’s looser standard. Milavetz, 559

U.S. at 250. See also Glickman v. Wileman Bros. & Elliot, Inc., 521

U.S. at 491 (1997) (Souter, J., dissenting, joined by Chief Justice

Rehnquist, and Justices Scalia and Thomas); Spirit Airlines, Inc. v.

Dep’t of Transp., 687 F.3d 403, 412 (D.C. Cir. 2012).

4

Gold, tantalum, tin, and tungsten.

4

advertisements. AMI, 760 F.3d at 21-23. Some other

governmental interests might suffice. Using Zauderer’s relaxed

standard of review,5 AMI 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. Id. at 23, 27. It was

of no moment that the governmental objective the AMI court

identified as sufficient – enabling “consumers to choose

American-made products,” id. at 23 – was one the government

disavowed not only when the Department of Agriculture issued

its regulations, but also when the Department of Justice

defended them in our court, id. at 25; id. at 46-47 (Brown, J.,

dissenting).6 The AMI court therefore overruled the portion of

5

The AMI court held that Zauderer – unlike Central Hudson –

does not require the government to prove that its disclosure

requirement will accomplish its objective. AMI, 760 F.3d at 26.

6

The en banc court framed the governmental interest in terms of

enabling consumers to buy American products, id. at 23-24, but the

government refrained from articulating any such interest. The only

interest the government asserted in AMI was the open-ended,

unbounded notion of providing consumers with information when they

make their purchasing decisions.

The government’s unwillingness to frame its interest in

protectionist terms, as the en banc court did, is understandable. While

AMI was pending before the panel, and then before the court en banc,

the World Trade Organization was conducting a proceeding to

determine whether the United States, by requiring country-of-origin

labeling, violated its treaty obligations not to engage in protectionism.

Canada and Mexico, joined by other countries, had filed a complaint

so alleging.

On October 20, 2014, after the AMI en banc opinion issued, the

WTO compliance panel ruled against the United States. The panel

held that the statute and regulations at issue in the AMI case violated

5

our decisions in NAM, R.J. Reynolds, and National Association

of Manufacturers v. NLRB holding that the analysis in Zauderer

was confined to government compelled disclosures designed to

prevent the deception of consumers.

In light of the AMI decision, we granted the petitions of the

Securities and Exchange Commission and intervenor Amnesty

International for rehearing to consider what effect, if any, AMI

had on our judgment that the conflict minerals disclosure

requirement in 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), and the

Commission’s final rule, 77 Fed. Reg. 56,274, 56,362-65,

violated the First Amendment to the Constitution. See Order of

November 18, 2014. For the reasons that follow we reaffirm our

initial judgment.

Before we offer our legal analysis, a pervasive theme of the

dissent deserves a brief response. To support the conflict

minerals disclosure rule, the dissent argues that the rule is valid

because the United States is thick with laws forcing “[i]ssuers of

securities” to “make all sorts of disclosures about their

products,” Dissent at 1. Charles Dickens had a few words about

this form of argumentation: “‘Whatever is is right’; an aphorism

the treaty obligations of the United States because the regulations

accord less favorable treatment to imported livestock than to domestic

livestock. The WTO’s Appellate Body rejected the United States’

appeal on May 18, 2015. GATT Dispute Panel on United States-

Certain Country of Origin Labeling (COOL) Requirements, Article

21.5 Panel Report (Oct. 20, 2014), Appellate Body Report (May 18,

2015), WT/DS384/RW, WT/DS386/RW. Canada has requested

authorization to retaliate and some expect a trade war. See Gov’t of

Canada, Canada to Seek WTO Authorization in Response to Country

of Origin Labeling; Editorial: Time to Lose COOL. Avoid Trade War,

After WTO Ruling, HERALD NEWS (CAN.), May 19, 2015; Krista

Hughes, U.S. Loses Meat Labeling Case; Trade War Looms, Reuters,

May 18, 2015.

6

that would be as final as it is lazy, did it not include the

troublesome consequence, that nothing that ever was, was

wrong.” CHARLES DICKENS, A TALE OF TWO CITIES 65 (Signet

Classics) (1859). Besides, the conflict minerals disclosure

regime is not like other disclosure rules the SEC administers.

This particular rule, the SEC determined, is “quite different from

the economic or investor protection benefits that our rules

ordinarily strive to achieve.” Conflict Minerals, 77 Fed. Reg.

56,274, 56,350 (Sept. 12, 2012) (codified at 17 C.F.R.

§§ 240.13p-1, 249b.400).7

As to the First Amendment, we agree with the SEC that

“after AMI, whether Zauderer applies in this case is an open

question.” Appellee Supp. Br. 10-11. NAM, in its initial

briefing and in its supplemental brief on rehearing, argued that

Zauderer did not apply to this case, not only because the

compelled disclosures here were unrelated to curing consumer

deception, but also because this government-compelled speech

was not within the Supreme Court’s category of “commercial

speech.” Appellants Supp. Br. 18-19; Appellants Br. 53. NAM

therefore argued that the commercial speech test of Central

Hudson, 447 U.S. at 564-66, also did not govern the First

Amendment analysis in this case.

7

The dissent likens the disclosures here to the “mine-run of

uncontroversial requirements to disclose factual information to

consumers.” Dissent at 4. But consumer protection was not a reason

for the conflict minerals disclosure regime. As the Commission noted,

“unlike in most of the securities laws, Congress intended the Conflict

Minerals Provision to serve a humanitarian purpose,” 77 Fed. Reg. at

56,350, and that purpose was to reduce the trade in minerals from the

DRC in order “to inhibit the ability of armed groups in the [DRC] to

fund their activities.” Id. at 56,276.

7

In our initial decision we did not decide whether the

compelled speech here was commercial speech;8 we assumed

arguendo that it was. NAM v. SEC, 748 F.3d at 372. Now on

rehearing the question looms again. But before we may

confront that broad issue, we address a narrower subsidiary

question: whether Zauderer, as now interpreted in AMI, reaches

compelled disclosures that are unconnected to advertising or

product labeling at the point of sale.

To put the matter differently, even if the conflict minerals

disclosures are categorized as “commercial speech,” it may not

8

It is easier to discern what the Supreme Court does not consider

“commercial speech” than to determine what speech falls within that

category. See Nike, Inc. v. Kasky, 539 U.S. 654, 655 (2003) (per

curiam) (writ of certiorari dismissed as improvidently granted).

For instance, even if “money is spent to project” speech, this does

not make it commercial speech. See Va. State Bd. of Pharmacy v. Va.

Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976).

Otherwise there is no explaining cases such as New York Times Co. v.

Sullivan, 376 U.S. 254 (1964), and Buckley v. Valeo, 424 U.S. 1

(1976). Speech “carried in a form” sold for profit does not render it

commercial speech under the Court’s decisions. Va. Pharmacy, 425

U.S. at 761. Otherwise books, newspapers, and television

programming would all be commercial speech. Id. Not all speech

soliciting money is commercial speech. Otherwise, Riley v. National

Federation of the Blind of North Carolina, 487 U.S. 781 (1988), and

other cases such as Cantwell v. Connecticut, 310 U.S. 296 (1940),

would have been decided differently. The Court has also determined

that just because the speech is about “a commercial subject,” it does

not fall into the category of commercial speech, otherwise “business

section editorials would be commercial speech; and it isn’t even

factual speech on a commercial subject, or else business section news

reporting would be commercial speech.” Alex Kozinski & Stuart

Banner, Who’s Afraid of Commercial Speech?, 76 VA. L. REV. 627,

638 (1990) (citing Va. Pharmacy, 425 U.S. at 761-62).

8

follow that Zauderer’s loose standard of review9 rather than the

more demanding standard of Central Hudson determines

whether the law violates the First Amendment rights of those

who are subject to the government’s edicts.

Conflict minerals disclosures are to be made on each

reporting company’s website and in its reports to the SEC. In

the rulemaking, the SEC acknowledged that the statute – and its

regulations – were “directed at achieving overall social

benefits,” that the law was not “intended to generate measurable,

direct economic benefits to investors or issuers,” and that the

regulatory requirements were “quite different from the economic

or investor protection benefits that our rules ordinarily strive to

achieve.” 77 Fed. Reg. at 56,350.10

The SEC thus recognized that this case does not deal with

advertising or with point of sale disclosures. Yet the Supreme

Court’s opinion in Zauderer is confined to advertising,

emphatically and, one may infer, intentionally. In a lengthy

opinion, the Court devoted only four pages to the issue of

compelled disclosures. Zauderer, 471 U.S. at 650-53. Yet in

those few pages the Court explicitly identified advertising as the

9

See Milavetz, Gallop & Milavetz, 559 U.S. at 249; and note 5

supra.

10

See Mary Jo White, Chairwoman, Sec. & Exch. Comm’n, A.A.

Sommer, Jr. Corporate Securities and Financial Law Lecture, Fordham

Law School (Oct. 3, 2013) (“Seeking to improve safety in mines for

workers or to end horrible human rights atrocities in the Democratic

Republic of the Congo are compelling objectives, which, as a citizen,

I wholeheartedly share. But, as the Chair of the SEC, I must question,

as a policy matter, using the federal securities laws and the SEC’s

powers of mandatory disclosure to accomplish these goals.”).

9

reach of its holding no less than thirteen times.11 Quotations in

the preceding footnote prove that the Court was not holding that

any time a government forces a commercial entity to state a

message of the government’s devising, that entity’s First

Amendment interest is minimal. Instead, the Zauderer Court –

in a passage AMI quoted, 760 F.3d at 22 – held that the

advertiser’s “constitutionally protected interest in not providing

any particular factual information in his advertising is minimal.”

Zauderer, 471 U.S. at 651 (last italics added).

For these reasons the Supreme Court has refused to apply

Zauderer when the case before it did not involve voluntary

commercial advertising.12 In Hurley v. Irish-American Gay,

11

Consider the following excerpts from Zauderer with our italics

added: “the Dalkon Shield advertisement,” id. at 650; “the

advertisement, absent the required disclosure,” id.; “In requiring

attorneys who advertise,” id.; “The State has attempted only to

prescribe what shall be orthodox in commercial advertising,” id. at

651; “a requirement that appellant include in his advertising purely

factual and uncontroversial information,” id.; “appellant’s

constitutionally protected interest in not providing any particular

factual information in his advertising is minimal,” id.; “an advertiser’s

interests,” id.; “the advertiser’s First Amendment rights,” id.; “an

advertiser’s rights,” id.; “attorney advertising,” id. at 652;

“Appellant’s advertisement,” id.; “The advertisement,” id.; “The

State’s position that it is deceptive to employ advertising,” id.

12

Whatever the commercial speech doctrine entails, commercial

advertising is at least at the heart of the matter. See, e.g., Central

Hudson, 447 U.S. at 563 (“The First Amendment’s concern for

commercial speech is based on the informational function of

advertising.”); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human

Relations, 413 U.S. 376, 385 (1973) (“The critical feature of the

advertisement [making it commercial speech] was that . . . it did no

more than propose a commercial transaction . . ..”); Bolger v. Youngs

Drug Prods. Corp., 463 U.S. 60, 66 (1983) (“[T]he core notion of

10

Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), a

unanimous Supreme Court 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.’” Hurley, 515 U.S. at 573. But Hurley went on to

stress that “outside that context” (commercial advertising) the

“general rule” is “that the speaker has the right to tailor the

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.” Id. (italics

added). The Court added that this constitutional rule was

“enjoyed by business corporations generally.” Id. at 574.

United States v. United Foods, Inc., 533 U.S. 405 (2001),

distinguished Zauderer for much the same reason. United Foods

claimed that a federal law compelling it to fund generalized

advertising for mushrooms violated the company’s First

Amendment rights. United Foods thought the mushrooms it

commercial speech [is] speech which does no more than propose a

commercial transaction.” (internal quotation marks omitted)); Spirit

Airlines, 687 F.3d at 412 (“The speech at issue here – the advertising

of prices – is quintessentially commercial insofar as it seeks to do no

more than propose a commercial transaction.” (internal quotation

marks omitted)); Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth.,

134 F.3d 87, 97 (2d Cir. 1998) (“The ‘core notion’ of commercial

speech includes ‘speech which does no more than propose a

commercial transaction.’ Outside this so-called ‘core’ lie various

forms of speech that combine commercial and noncommercial

elements. Whether a communication combining those elements is to

be treated as commercial speech depends on factors such as whether

the communication is an advertisement, whether the communication

makes reference to a specific product, and whether the speaker has an

economic motivation for the communication.” (internal citations

omitted)).

11

produced were superior to others. Although the Court indicated

that the United Foods’ forced contribution was commercial

speech, the First “Amendment may prevent the government

from compelling individuals to express certain views or from

compelling certain individuals to pay subsidies for speech to

which they object.” Id. at 410 (internal citations omitted). As

to Zauderer, the Court found that decision inapplicable because

– as in this case – United Foods did not deal with “voluntary

advertising” or advertising by the company’s “own choice.” Id.

at 416.13

In answer to the SEC’s “open question,” we therefore hold

that Zauderer has no application to this case.14 This puts the

13

The AMI en banc majority did not mention Hurley’s or United

Foods’ distinction of Zauderer. Perhaps the cases escaped attention

or perhaps the AMI majority believed that product labeling at the point

of sale was simply an adjunct of advertising, to which Zauderer did

apply. The dissent in this case would dismiss Hurley and United

Foods on the ground that both opinions were merely describing

“Zauderer’s factual context.” Dissent at 11-12. This will not wash.

Of course both opinions describe Zauderer. The important point is

why Hurley and United Foods do so – to explain that Zauderer did not

apply because the case before the Court did not involve commercial

advertising (Hurley) or voluntary advertising (United Foods).

14

In calling our holding a “newly minted constriction of

Zauderer” to advertising, Dissent at 9, the dissent distorts not only the

language of Zauderer itself, but also the Supreme Court’s decisions in

Hurley and United Foods distinguishing Zauderer on the ground that

it applied only to commercial or voluntary advertising.

The dissent also detects an anomaly: if the conflict minerals

disclosure were required at the point of sale of the company’s product,

Zauderer would apply but if, as here, the disclosure is required once

a year on the company’s website, Central Hudson applies. Dissent at

9-10. What the dissent fails to see is that this dichotomy results from

12

case in the same posture as in our initial opinion when we

determined that Zauderer did not apply, but for a different

reason. As we ruled in our initial decision, we need not decide

whether “strict scrutiny or the Central Hudson test for

commercial speech” applies. NAM, 748 F.3d at 372. For the

reasons we gave in that opinion, id. at 372-73, the SEC’s “final

rule does not survive even Central Hudson’s intermediate

standard.” Id. at 372. We need not repeat our reasoning in this

regard.

But given the flux and uncertainty of the First Amendment

doctrine of commercial speech,15 and the conflict in the circuits

regarding the reach of Zauderer,16 we think it prudent to add an

alternative ground for our decision. It is this. Even if the

compelled disclosures here are commercial speech and even if

AMI’s view of Zauderer governed the analysis, we still believe

that the statute and the regulations violate the First Amendment.

To evaluate the constitutional validity of the compelled

conflict minerals disclosures, the first step under AMI (and

Central Hudson) is to identify and “assess the adequacy of the

the AMI decision stretching Zauderer to cover laws compelling

disclosures at the time of sale for reasons other than preventing

consumer deception. In other words if there is something anomalous,

it is attributable to AMI, not our decision here, which follows Supreme

Court precedents confining the Zauderer standard to “voluntary

advertising.” United Foods, 533 U.S. at 416.

15

See AMI, 760 F.3d at 43 (Brown, J., dissenting).

16

See Dwyer v. Cappell, 762 F.3d 275, 282-85 (3d Cir. 2014);

Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 559

n.8 (6th Cir. 2012) (opinion for the court by Stranch, J.); Entm’t

Software Ass’n v. Blagojevich, 469 F.3d 641, 651-53 (7th Cir. 2006);

Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 115 (2d Cir. 2001).

13

[governmental] interest motivating” the disclosure requirement.

AMI, 760 F.3d at 23. Oddly, the SEC’s Supplemental Brief does

not address this subject. In the first round of briefing the SEC

described the government’s interest as “ameliorat[ing] the

humanitarian crisis in the DRC.” Appellee Br. 26.17 We will

treat this as a sufficient interest of the United States under AMI

and Central Hudson.

After identifying the governmental interest or objective, we

are to evaluate the effectiveness of the measure in achieving it.

AMI, 760 F.3d at 26; see, e.g., Ibanez v. Fla. Dep’t of Bus. &

Prof. Reg., 512 U.S. 136, 146 (1994); Central Hudson, 447 U.S.

at 564-66.18 Although the burden was on the government, see

Ibanez, 512 U.S. at 146, here again the SEC has offered little

substance beyond citations to statements by two Senators and

members of the executive branch, and a United Nations

resolution. The government asserts that this is a matter of

foreign affairs and represents “the type of ‘value judgment based

on the common sense of the people’s representatives’ for which

17

The SEC said much the same in the rulemaking – that the

interest was “the promotion of peace and security in the Congo,”

rather than “economic or investor protection benefits that [SEC] rules

ordinarily strive to achieve.” 77 Fed. Reg. at 56,350; see also id. at

56,276. In fact, the statute and rule “may provide significant

advantage to foreign companies that are not reporting in the United

States” and may place public companies in this country at a

“competitive disadvantage” against private companies who are not

subject to the SEC’s reporting rules. Id. at 56,350.

18

Show us not the aim without the way.

For ends and means on earth are so entangled

That changing one, you change the other too;

Each different path brings other ends in view.

ARTHUR KOESTLER, DARKNESS AT NOON 241 (1940).

14

this Court has not required more detailed evidence.” Appellee

Br. 64 (quoting Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 16

(D.C. Cir. 2009)). As the government notes, in the area of

foreign relations, “conclusions must often be based on informed

judgment rather than concrete evidence.” Holder v.

Humanitarian Law Project, 561 U.S. 1, 34-35 (2010).

But in the face of such evidentiary gaps, we are forced to

assume what judgments Congress made when crafting this rule.

The most obvious stems from the cost of compliance, estimated

to be $3 billion to $4 billion initially and $207 million to $609

million annually thereafter,19 see 77 Fed. Reg. at 56,334, and the

prospect that some companies will therefore boycott mineral

suppliers having any connection to this region of Africa.20 How

would that reduce the humanitarian crisis in the region? The

idea must be that the forced disclosure regime will decrease the

revenue of armed groups in the DRC and their loss of revenue

19

A recent study suggests companies spent “roughly $709 million

and six million staff hours last year to comply with” the conflict

minerals rule. Emily Chasan, U.S. Firms Struggle to Trace ‘Conflict

Minerals’, THE WALL STREET JOURNAL, Aug. 3, 2015.

20

The SEC made this point in the rulemaking:

The high cost of compliance provides an incentive for

issuers to choose only suppliers that obtain their

minerals exclusively from outside the Covered

Countries, thereby avoiding the need to prepare a

Conflict Minerals Report. To the extent that Covered

Countries are the lowest cost suppliers of the

minerals affected by the statute, [such] issuers . . .

would have to increase the costs of their products to

recoup the higher costs.

Conflict Minerals, 77 Fed. Reg. at 56,351.

15

will end or at least diminish the humanitarian crisis there. But

there is a major problem with this idea – it is entirely unproven

and rests on pure speculation.21

Under the First Amendment, in commercial speech cases

the government cannot rest on “speculation or conjecture.”

Edenfield v. Fane, 507 U.S. 761, 770 (1993). But that is exactly

what the government is doing here. Before passing the statute,

Congress held no hearings on the likely impact of § 1502. The

SEC points to hearings Congress held on prior bills addressing

the conflict in the DRC, but those hearings did not address the

statutory provisions at issue in this case. When Congress held

21

This problem was raised by one of the SEC Commissioners

during an open meeting:

The SEC’s conflict minerals rulemaking suffers from

an analytical gap that I cannot overlook – namely,

there is a failure to assess whether and, if so, the

extent to which the final rule will in fact advance its

humanitarian goal as opposed to unintentionally

making matters worse. Indeed, based on some of the

comment[s] that the Commission has received, there

is reason to worry that, contrary to the aims of

Section 1502, a chief consequence of the final rule

could be that it actually worsens conditions in the

DRC. . . . Because this rulemaking lacks any analysis

of whether the benefits will materialize – failing to

assess how the choices the Commission has made

will impact life on the ground in the DRC – I am

unable to support the recommendation and

respectfully dissent.

Troy A. Paredes, Commissioner, Sec. & Exch. Comm’n,

Statement at Open Meeting to Adopt a Final Rule Regarding Conflict

Minerals Pursuant to Section 1502 of the Dodd-Frank Act,

Washington, D.C. (Aug. 22, 2012).

16

hearings after § 1502’s enactment, the testimony went both ways

– some suggested the rule would alleviate the conflict, while

others suggested it had “had a significant adverse effect on

innocent bystanders in the DRC.” The Unintended

Consequences of Dodd-Frank’s Conflict Minerals Provision:

Hearing Before the Subcomm. on Monetary Policy and Trade of

the H. Comm. on Financial Services, 113th Cong. (May 21,

2013) (Statement of Rep. Campbell).

Other post-hoc evidence throws further doubt on whether

the conflict minerals rule either alleviates or aggravates the

stated problem. As NAM points out on rehearing, the conflict

minerals law may have backfired. Because of the law, and

because some companies in the United States are now avoiding

the DRC, miners are being put out of work or are seeing even

their meager wages substantially reduced, thus exacerbating the

humanitarian crisis and driving them into the rebels’ camps as

a last resort. Appellants Supp. Br. 17; see, e.g., Sudarsan

Raghavan, How a Well-Intentioned U.S. Law Left Congolese

Miners Jobless, WASH. POST, Nov. 30, 2014; Lauren Wolfe,

How Dodd-Frank is Failing Congo, FOREIGN POL’Y, Feb. 2,

2015.22

22

See Aloys Tegera et al., Open Letter, Sept. 9, 2014, (“[T]he

conflict minerals movement has yet to lead to meaningful

improvement on the ground, and has had a number of unintended and

damaging consequences. Nearly four years after the passing of the

Dodd-Frank Act, only a small fraction of the hundreds of mining sites

in the eastern DRC have been reached by traceability or certification

efforts. The rest remain beyond the pale, forced into either illegality

or collapse as certain international buyers have responded to the

legislation by going ‘Congo-free.’ This in turn has driven many

miners into the margins of legality . . . and in areas where mining has

ceased, local economies have suffered.”).

17

Our original opinion pointed out that the SEC was unable

to quantify any benefits of the forced disclosure regime itself.

NAM, 748 F.3d at 364. See 77 Fed. Reg. at 56,335 (“The statute

therefore aims to achieve compelling social benefits, which we

are unable to readily quantify with any precision.”). The

Government Accountability Office has refrained from

addressing the issue, even though the conflict minerals statute

required it to assess the effectiveness of the required disclosures

in relieving the humanitarian crises. 15 U.S.C.

§ 78m(p)(1)(A)(ii) & (E); see U.S. G.A.O., CONFLICT

MINERALS: STAKEHOLDER OPTIONS FOR RESPONSIBLE

SOURCING ARE EXPANDING, BUT MORE INFORMATION ON

SMELTERS IS NEEDED 3 (June 26, 2014) (“[W]e have not yet

addressed the effectiveness of SEC’s conflict minerals rule as

required under the legislation.”).23

That is not to say that we know for certain that the conflict

minerals rule will not help – other sources contend the rule will

do so.24 But it is to say that whether § 1502 will work is not

23

The Department of Commerce is charged in Dodd-Frank with

compiling a list of “all known conflict mineral processing facilities

worldwide.” Dodd-Frank Wall Street Reform and Consumer

Protection Act, Pub. L. No. 111-203, § 1502(d)(3)(C), 124 Stat. 1376,

2217 (2010). Instead, it compiled a list of “all known processing

facilities” for gold, tantalum, tin, or tungsten, but did “not indicate

whether a specific facility processes minerals that are used to finance

conflict in the [DRC] or an adjoining country.” The Department

confessed that it “do[es] not have the ability to distinguish such

facilities.” International Trade Administration, Department of

Commerce, Reporting Requirements Under Section 1502(d)(3)(C) of

the Dodd-Frank Act World-Wide Mineral Processing Facilities, Sept.

5, 2014.

24

See John Prendergast et al., Suffocating Congo’s War, FOREIGN

POL’Y, Feb. 7, 2015, (responding to Wolfe, How Dodd-Frank is

18

proven to the degree required under the First Amendment to

compel speech.

All of this presents a serious problem for the SEC because,

as we have said, the government may not rest on such

speculation or conjecture. Edenfield v. Fane, 507 U.S. at 770.

Rather the SEC had the burden of demonstrating that the

measure it adopted would “in fact alleviate” the harms it recited

“to a material degree.” Id. at 771; see, e.g., Ibanez, 512 U.S. at

146; Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994)

(plurality opinion); Pearson v. Shalala, 164 F.3d 650, 659 (D.C.

Cir. 1999); Action for Children’s Television v. FCC, 58 F.3d

654, 665 (D.C. Cir. 1995) (en banc). The SEC has made no

such demonstration in this case and, as we have discussed,

during the rulemaking the SEC conceded that it was unable to

do so.

This in itself dooms the statute and the SEC’s regulation.

If that were not enough, we would move on to evaluate another

aspect of AMI, an aspect of the opinion on which two of the

supplemental briefs on rehearing (those of the SEC and NAM)

focus – namely, whether the compelled disclosures here are

“purely factual and uncontroversial,” AMI, 760 F.3d at 26

(quoting Zauderer, 471 U.S. at 651). The intervenors, although

supporting the SEC, write in their supplemental brief that AMI

“sheds little light on whether Zauderer’s reference to ‘purely

factual and uncontroversial information’ states a legal standard

and, if so, what the standard means.” Intervenors Supp. Br. 8.

They continue: “Zauderer itself used the phrase . . . to

characterize the particular information subject to disclosure in

that case, not to articulate a legal test,” id. at 9. They add that

Failing Congo); Zainab Hawa Bangura, Sexual Violence and Conflict

Minerals: International Demand Fuels Cycle, THE GUARDIAN, June

18, 2014.

19

the term “uncontroversial” is “ill-suited to establishing an

element of a legal standard,” id. at 11. In support, the

intervenors cite the Sixth Circuit’s decision that the “purely

factual and uncontroversial” phrase from Zauderer, which the

Supreme Court’s opinion mentioned only once and not in its

statement of the holding, was merely descriptive and not a legal

standard. Disc. Tobacco City & Lottery, Inc. v. United States,

674 F.3d 509, 559 n.8 (6th Cir. 2012) (opinion for the court by

Stranch, J.).

However persuasive we might find the intervenors’

argument,25 we see no way to read AMI except as holding that –

to quote AMI – Zauderer “requires the disclosure to be of

‘purely factual and uncontroversial information’ about the good

or service being offered.” AMI, 760 F.3d at 27. We are

therefore bound to follow that holding. See LaShawn A. v.

Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc).

Even so, the intervenors are correct that the AMI majority

“made no attempt to define those terms precisely.” Intervenors

Supp. Br. 9. AMI did speak of “controversial in the sense that

[the compelled speech] communicates a message that is

controversial for some reason other than [a] dispute about

simple factual accuracy.” AMI, 760 F.3d at 27. Judge

Kavanaugh, concurring in the judgment in AMI, wrote that “it is

unclear how we should assess and what we should examine to

25

In our initial opinion we quoted the holding in Riley v. National

Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988),

that the cases dealing with forced ideological messages “cannot be

distinguished simply because they involved compelled statements of

opinion while here we deal with compelled statements of ‘fact.’”

NAM, 748 F.3d at 371 (quoting Riley, 487 U.S. at 797); see also Va.

Pharmacy, 425 U.S. at 762.

20

determine whether a mandatory disclosure is controversial.” Id.

at 34 (Kavanaugh, J., concurring in the judgment).

One clue is that “uncontroversial,” as a legal test, must

mean something different than “purely factual.” Hence, the

statement in AMI we just quoted, describing “controversial in

the sense that [the compelled speech] communicates a message

that is controversial for some reason other than [a] dispute about

simple factual accuracy.” AMI, 760 F.3d at 27. Perhaps the

distinction is between fact and opinion. But that line is often

blurred, and it is far from clear that all opinions are

controversial. Is Einstein’s General Theory of Relativity fact or

opinion, and should it be regarded as controversial? If the

government required labels on all internal combustion engines

stating that “USE OF THIS PRODUCT CONTRIBUTES TO

GLOBAL WARMING” would that be fact or opinion? It is

easy to convert many statements of opinion into assertions of

fact simply by removing the words “in my opinion” or removing

“in the opinion of many scientists” or removing “in the opinion

of many experts.”26 Cf. Omnicare, Inc. v. Laborers Dist.

Council Constr. Indus. Pension Fund, 135 S. Ct. 1318 (2015);

26

The conflict minerals provisions contain a “Sense of Congress”

preamble, Dodd-Frank Wall Street Reform and Consumer Protection

Act, Pub. L. No. 111-203, § 1502(a), 124 Stat. 1376, 2213 (2010),

which strikes us not as a statement of fact but a statement of opinion.

Some courts treat such provisions as precatory. See, e.g., Yang v. Cal.

Dep’t of Social Servs., 183 F.3d 953, 958 (9th Cir. 1999); Monahan

v. Dorchester Counseling Ctr., 961 F.2d 987, 994-95 (1st Cir. 1992);

Trojan Techs., Inc. v. Pennsylvania, 916 F.2d 903, 909 (3d Cir. 1990).

We have previously noted that a “sense of Congress provision” may

be used by that body to voice disagreement with an opinion of this

court, Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 877 (D.C.

Cir. 2006), and that such a provision may be non-binding, Emergency

Coal. to Defend Educ. Travel v. U.S. Dep’t of the Treasury, 545 F.3d

4, 14 n.6 (D.C. Cir. 2008).

21

Frederick Schauer, Facts and the First Amendment, 57 UCLA

L. REV. 897 (2010). It is also the case that propositions once

regarded as factual and uncontroversial may turn out to be

something quite different.27 What time frame should a court use

in assessing this? At the time of enactment of the disclosure

statute? At the time of an agency’s rulemaking implementing

the disclosure statute? Or at some later time when the

compelled disclosures are no longer considered “purely factual”

or when the disclosures have become “controversial”?

That the en banc court viewed the country-of-origin

disclosures at issue in AMI as “uncontroversial” poses another

puzzle. A controversy, the dictionaries tell us, is a dispute,

especially a public one.28 Was there a dispute about the country-

27

To illustrate, consider National Commission on Egg Nutrition

v. FTC, 570 F.2d 157 (7th Cir. 1977), a case cited in Zauderer, 471

U.S. at 645. The Seventh Circuit upheld the FTC’s order requiring

petitioners to cease placing newspaper advertisements stating that

eating eggs does not increase a person’s cholesterol level and to make

certain disclosures. Petitioners’ advertisements, and other statements

like it, were considered false and misleading. Nat’l Comm’n on Egg

Nutrition, 570 F.2d at 160-61. But the tables have turned. In its 2015

report, the Dietary Guidelines Advisory Committee of the Department

of Agriculture found that there was “no appreciable relationship

between consumption of dietary cholesterol and serum [blood]

cholesterol.” U.S. Dep’t of Agric., Scientific Report of the 2015

Dietary Guidelines Advisory Committee, Part D Ch. 1, 17 (2015).

28

The dissent claims that under AMI, “purely factual and

uncontroversial” means “purely factual” and “accurate.” Dissent at

12-15. In so twisting the phrase, the dissent turns it into a redundancy.

Is there such a thing as a “purely factual” proposition that is not

“accurate”? The en banc majority in AMI, which used the phrase as

a First Amendment test, did not think so. AMI described an

unconstitutional compelled disclosure as one “communicat[ing] a

message that is controversial for some reason other than dispute about

22

of-origin disclosures in AMI or as AMI put it, was there a

controversy “for some reason other than [a] dispute about simple

factual accuracy”? AMI, 760 F.3d at 27. One would think the

answer surely was yes. As we explained earlier, while AMI was

pending a panel of the World Trade Organization was

conducting a proceeding in which other nations charged that the

country-of-origin labeling law violated the treaty obligations of

the United States, a controversy that later resulted in a ruling

against the United States. See supra n.6.

In its Supplemental Brief, the SEC invoked for the first time

Meese v. Keene, 481 U.S. 465 (1987), describing the case as one

in which “the Supreme Court rejected a First Amendment

challenge to compelled disclosures accompanying materials that

met the statutory definition of ‘political propaganda,’” Appellee

Supp. Br. 16. The SEC’s description is not accurate. Keene was

not a compelled speech case. An agency of the Canadian

government distributed films the Department of Justice

considered “political propaganda” under the Foreign Agents

Registration Act. This triggered the requirement that the foreign

simple factual accuracy.” AMI, 760 F.3d at 27 (italics added).

In struggling to provide content to this portion of AMI, the dissent

asserts that a “misleading disclosure, by definition, would not convey

accurate information to a consumer” and therefore would not be

“uncontroversial.” Dissent at 16. But as Mark Twain wrote, “Often,

the surest way to convey misinformation is to tell the strict truth.”

Pudd’nhead Wilson’s New Calendar in MARK TWAIN, FOLLOWING

THE EQUATOR 567 (1st ed. 1897). See Bronston v. United States, 409

U.S. 352 (1973). It is also worth noting that the attorney in Zauderer

provided, as the dissent puts it, “factually accurate information” to

consumers: his advertisement informed potential clients that if there

were “no recovery, no legal fees are owed by our clients.” Zauderer,

471 U.S. at 631. The trouble was that he did not mention that they

would still be liable for other expenses.

23

agent – Canada – affix a label to the material identifying its

source. The label did not contain the words “political

propaganda.” Keene, 481 U.S. at 470-71. The Court made clear

that the constitutionality of this disclosure regime was “not at

issue in this case.” Id. at 467. The plaintiff – an attorney and

state legislator – wanted to show the films and claimed that the

government’s considering the films “propaganda” violated his

First Amendment rights, a claim the Court rejected. The

attorney was under no disclosure obligations and he was free to

remove the label the Canadian government had affixed to the

film packaging. As NAM’s Supplemental Brief points out,

Keene “did not suggest, much less hold, that it would be

constitutionally permissible for Congress to force filmmakers to

label their own films as ‘political propaganda’ – or not

‘propaganda free’ – however the term was defined.” Appellants

Supp. Br. 13.

We agree with NAM that the statutory definition of

“conflict free” cannot save this law. See Entm’t Software Ass’n

v. Blagojevich, 469 F.3d 641, 652 (7th Cir. 2006); cf. Video

Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 965-

67 (9th Cir. 2009). As NAM forcefully puts it, “[i]f the law

were otherwise, there would be no end to the government’s

ability to skew public debate by forcing companies to use the

government’s preferred language. For instance, companies

could be compelled to state that their products are not

‘environmentally sustainable’ or ‘fair trade’ if the government

provided ‘factual’ definitions of those slogans – even if the

companies vehemently disagreed that their [products] were

‘unsustainable’ or ‘unfair.’” Appellants Supp. Br. 12.29

29

A famous example of governmental redefinition comes to

mind:

24

In our initial opinion we stated that the description at issue

– whether a product is “conflict free” or “not conflict free” –

was hardly “factual and non-ideological.” NAM, 748 F.3d at

371.30 We put it this way: “Products and minerals do not fight

conflicts. The label ‘[not] conflict free’ is a metaphor that

conveys moral responsibility for the Congo war. It requires an

issuer to tell consumers that its products are ethically tainted,

even if they only indirectly finance armed groups. An issuer,

including an issuer who condemns the atrocities of the Congo

war in the strongest terms, may disagree with that assessment of

its moral responsibility. And it may convey that ‘message’

through ‘silence.’ See Hurley, 515 U.S. at 573. By compelling

an issuer to confess blood on its hands, the statute interferes with

that exercise of the freedom of speech under the First

Amendment. See id.” NAM, 748 F.3d at 371.

We see no reason to change our analysis in this respect.

And we continue to agree with NAM31 that “[r]equiring a

company to publicly condemn itself is undoubtedly a more

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH

GEORGE ORWELL, NINETEEN EIGHTY-FOUR 4 (Signet Classic)

(1949).

30

See Entm’t Software Ass’n v. Blagojevich, 469 F.3d at 652.

31

Two of the five SEC Commissioners have expressed the same

sentiment: “Requiring persons to presume their guilt by association

with the current tragedy in the Congo region unless proven otherwise

is neither factual nor uncontroversial.” Yin Wilczek, SEC Argues Its

Conflict Minerals Rule Survives First Amendment Scrutiny,

BLOOMBERG BNA, Dec. 12, 2014 (quoting Joint Statement of

Commissioners Gallagher and Piwowar).

25

‘effective’ way for the government to stigmatize and shape

behavior than for the government to have to convey its views

itself, but that makes the requirement more constitutionally

offensive, not less so.” Appellants Reply Br. 27-28.

For all these reasons, we adhere to our original judgment

“that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), and the Commission’s

final rule, 77 Fed. Reg. at 56,362-65, violate the First

Amendment to the extent the statute and rule require regulated

entities to report to the Commission and to state on their website

that any of their products have ‘not been found to be ‘DRC

conflict free.’’”32 NAM, 748 F.3d at 373.

So ordered.

32

As we stated in our initial opinion, the “requirement that an

issuer use the particular descriptor ‘not been found to be ‘DRC

conflict free’’ may arise as a result of the Commission’s discretionary

choices, and not as a result of the statute itself. We only hold that the

statute violates the First Amendment to the extent that it imposes that

description requirement. If the description is purely a result of the

Commission’s rule, then our First Amendment holding leaves the

statute itself unaffected.” NAM, 748 F.3d at 373 n.14. The

Commission has not shed any light on this in its recent filings with our

court.

SRINIVASAN, Circuit Judge, dissenting: Issuers of

securities must make all sorts of disclosures about their

products for the benefit of the investing public. No one thinks

that garden-variety disclosure obligations of that ilk raise a

significant First Amendment problem. So here, there should

be no viable First Amendment objection to a requirement for

an issuer to disclose the country of origin of a product’s

materials—including, say, whether the product contains

specified minerals from the Democratic Republic of the

Congo (DRC) or an adjoining country, the site of a

longstanding conflict financed in part by trade in those

minerals. Such a requirement provides investors and

consumers with useful information about the geographic

origins of a product’s source materials. Indeed, our court,

sitting en banc, recently relied on “the time-tested consensus

that consumers want to know the geographical origin of

potential purchases” in upholding a requirement for

companies to identify the source country of food products.

Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18, 24 (2014)

(internal quotation marks omitted). It is hard to see what is

altogether different about another species of “geographical

origin” law requiring identification of products whose

minerals come from the DRC or adjoining countries.

If an issuer’s products contain minerals originating in

those conflict-ridden countries, the Conflict Minerals Rule

requires the issuer to determine whether the products are

“DRC conflict free,” where “DRC conflict free” is a

statutorily defined term of art denoting products that are free

of “conflict minerals that directly or indirectly finance or

benefit armed groups” in the DRC or adjoining countries. 15

U.S.C. § 78m(p)(1)(D). If the issuer cannot conclude, after

investigating the sourcing of its minerals, that a product is

“DRC conflict free” under the statutory definition, it must say

so in a report disclosing that the product has “not been found

to be ‘DRC conflict free.’” The requirement to make that

disclosure, in light of the anticipated reaction by investors and

2

consumers, aims to dissuade manufacturers from purchasing

minerals that fund armed groups in the DRC region. That

goal is unique to this securities law; but the basic

mechanism—disclosure of factual information about a

product in anticipation of a consumer reaction—is regular fare

for governmental disclosure mandates. Many disclosure laws,

including the law upheld in AMI, operate in just that way.

Appellants raise no First Amendment objection to the

obligation to find out which of their products fail to qualify as

“DRC conflict free” within the meaning of the statutory

definition. Nor do they challenge the obligation to list those

products in a report for investors. Appellants also presumably

would have no problem with a requirement to list the products

by parroting the statutory definition, i.e., as products that have

not been determined to be free of conflict minerals that

“directly or indirectly finance or benefit armed groups” in the

DRC region. At least some issuers in fact have been making

essentially that sort of disclosure, without apparent objection,

under the partial stay of the Rule in effect since our original

panel decision. See Exchange Act Rule 13p-1 and Form SD,

Exchange Act Release No. 72,079 (May 2, 2014); e.g., Canon

Inc., Conflict Minerals Report (Form SD Ex. 1.01) § 5 (May

29, 2015).

Appellants’ challenge instead is a more targeted one:

they object only to the Rule’s requirement to describe the

listed products with the catchphrase “not been found to be

‘DRC conflict free.’” But if there is no First Amendment

problem with an obligation to identify and list those products,

or to describe them by quoting the statutory definition, it is far

from clear why the prescribed use of a shorthand phrase for

that definition—in lieu of the technical definition itself—

would materially change the constitutional calculus.

3

Perhaps one might object that the meaning of the

shorthand description “DRC conflict free” would not

necessarily be known to a reader. But that descriptor comes

amidst a set of mandated disclosures about the measures

undertaken to determine the source of minerals originating in

the DRC or adjoining countries. So the meaning of “DRC

conflict free” would seem quite apparent in context. And

even if otherwise, an investor or consumer coming across that

term for the first time would, with little effort, learn that it

carries a specific meaning prescribed by law.

But that’s not all. To eliminate any possibility of

confusion, the Rule’s disclosure obligation enables the issuer

to elaborate on the prescribed catchphrase however it sees fit.

So, for example, the issuer could say that the listed products

have “not been found to be ‘DRC conflict free,’ which is a

phrase we are obligated to use under federal securities laws

to describe products when we are unable to determine that

they contain no minerals that directly or indirectly finance or

benefit armed groups in the DRC or an adjoining country.”

At that point, there would seem to be nothing arguably

confusing or misleading about the content of the Rule’s

mandated disclosure.

The First Amendment, under the Supreme Court’s

decisions, poses no bar to the Rule’s disclosure obligation.

The Court has emphasized that “the extension of First

Amendment protection to commercial speech is justified

principally by the value to consumers of the information such

speech provides.” Zauderer v. Office of Disciplinary

Counsel, 471 U.S. 626, 651 (1985). Correspondingly, when

the government requires disclosure of truthful, factual

information about a product to consumers, a company’s First

Amendment interest in withholding that information from its

consumers is “minimal.” Id. That is why countless disclosure

4

mandates in the commercial arena—country of origin of

products and materials, calorie counts and nutritional

information, extensive reporting obligations under the

securities laws, and so on—raise no serious First Amendment

question.

The sum of the matter is this: in the context of

commercial speech, the compelled disclosure of truthful,

factual information about a product to consumers draws

favorable review. That review takes the form of the

permissive standard laid down by the Supreme Court in

Zauderer. I would apply that approach here. Like the mine-

run of uncontroversial requirements to disclose factual

information to consumers in the commercial sphere, the

descriptive phrase “not been found to be ‘DRC conflict free’”

communicates truthful, factual information about a product to

investors and consumers: it tells them that a product has not

been found to be free of minerals originating in the DRC or

adjoining countries that may finance armed groups.

Appellants challenge the prescribed catchphrase for such

a product—“not been found to be ‘DRC conflict free’”—on

the ground that it ostensibly brands issuers with a “scarlet

letter.” Appellant Br. 52. Appellants’ invocation of a “scarlet

letter” is out of place. If they mean to suggest that issuers

would prefer to avoid the label “not found to be ‘DRC

conflict free’” because it invites public scrutiny, the same is

true of all sorts of entirely permissible requirements to

disclose factual information to consumers (high calorie counts

or low nutritional value, for instance). When a law mandates

disclosure of that sort of “particular factual information”

about a company’s product, the Supreme Court has said, the

company has only a “minimal” cognizable interest in

withholding public disclosure. Zauderer, 471 U.S. at 651.

By contrast, the scarlet “A” affixed to Hester Prynne’s gown

5

conveyed personal information that she had a strong and

obvious interest in withholding from the public. In that sense,

requiring a company to disclose product information in the

commercial marketplace is not the same as requiring Hester

Prynne to “show [her] scarlet letter in the [town] market-

place.” Nathaniel Hawthorne, The Scarlet Letter 63 (Laird &

Lee 1892).

I would therefore hold that the favored treatment

normally afforded to compelled factual disclosures in the

commercial arena applies to the Conflict Minerals Rule. The

obligation to use the term “not been found to be ‘DRC

conflict free’” should be subject to relaxed Zauderer review,

which it satisfies. Even under the less permissive test for

restrictions on commercial speech established in Central

Hudson Gas & Electric Corp. v. Public Service Commission,

447 U.S. 557 (1980), I would find that the Rule survives.

Because I would conclude that the Conflict Minerals Rule

works no violation of the First Amendment, I respectfully

disagree with the contrary decision reached by my colleagues.

I.

An understanding of the unique treatment afforded to

compelled disclosures in the area of commercial speech

substantially informs the proper resolution of the First

Amendment challenge in this case. As we recognized in AMI,

760 F.3d at 21-22, and as the Supreme Court has emphasized,

the starting premise in all commercial speech cases is the

same: the First Amendment values commercial speech for

different reasons than non-commercial speech.

Until 1976, commercial speech received no constitutional

protection at all. See Valentine v. Chrestensen, 316 U.S. 52

(1942), overruled by Va. State Bd. of Pharmacy v. Va.

6

Citizens Consumer Council, Inc., 425 U.S. 748 (1976). When

the Supreme Court eventually extended “First Amendment

protection to commercial speech,” it did so primarily because

of the “value to consumers of the information such speech

provides.” Zauderer, 471 U.S. at 651. The Court protected

commercial speech against unwarranted restriction through

the framework set out in Central Hudson. 447 U.S. at 564.

Outside the context of commercial speech, the

protections applicable to restrictions on speech directly mirror

the protections applicable to compelled speech. Compelled

speech, the Supreme Court has observed, generally is “as

violative of the First Amendment as prohibitions on speech.”

Zauderer, 471 U.S. at 650. That symmetry does not exist,

however, in the area of commercial speech. In that context,

there are “material differences between disclosure

requirements and outright prohibitions on speech.” Id. When

the government requires disclosure of “purely factual and

uncontroversial information” about products in the

commercial sphere, “the First Amendment interests

implicated . . . are substantially weaker than those at stake

when speech is actually suppressed.” AMI, 760 F.3d at 22

(quoting Zauderer, 471 U.S. at 652 n.14).

In particular, because the First Amendment’s protection

of commercial speech lies in the speech’s value to consumers,

there is only a “minimal” interest in resisting disclosure of

product information to the public. Zauderer, 471 U.S. at 651;

see Milavetz, Gallop & Milavetz, P.A. v. United States, 559

U.S. 229, 249-50 (2010). Laws “requiring a commercial

speaker to make purely factual disclosures related to its

business affairs . . . facilitate rather than impede the free flow

of commercial information.” Beeman v. Anthem Prescription

Mgmt., 315 P.3d 71, 89 (Cal. 2013) (internal quotation marks

omitted); see generally Robert Post, Compelled Commercial

7

Speech, 117 W. Va. L. Rev. 867 (2015). As a result,

government compulsion of “purely factual and

uncontroversial” commercial speech is subject to a more

lenient constitutional standard than the Central Hudson

framework applicable to restrictions on commercial speech.

Zauderer, 471 U.S. at 651. The government can require

disclosure of factual and uncontroversial information in the

realm of commercial speech as long as the disclosure

“reasonably relate[s]” to an adequate interest. Id.

The key to deciding whether to apply Zauderer or

Central Hudson, then, turns on the effect of the challenged

government regulation. Does the regulation restrict the flow

of truthful commercial information, in which case it triggers

more searching review under Central Hudson? Or does the

regulation expand the flow of truthful commercial

information by requiring its disclosure, in which case it

occasions less demanding review under Zauderer?

II.

To answer that question for the Conflict Minerals Rule,

we must first address a threshold issue: whether the

challenged disclosure involves “commercial speech.” The

relaxed standard of Zauderer, according to the logic (and

letter) of the Court’s opinion, applies only in the context of

“commercial speech.” 471 U.S. at 651.

The Conflict Minerals Rule meets that condition. The

Rule requires 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. In that sense,

the disclosure resembles the country-of-origin labeling this

court deemed “commercial speech” in AMI. 760 F.3d at 21.

8

Like the labels at issue in AMI, the conflict minerals

disclosure informs investors and consumers about the

geographic origins of products for sale in the commercial

marketplace.

It is true that the conflict minerals disclosure appears in

annual reports made available on manufacturers’ websites

(and filed with the Securities and Exchange Commission)

rather than in product labels or conventional advertisements.

But under our precedents, the precise form of the speech does

not determine whether it qualifies as “commercial speech.” In

United States v. Philip Morris USA, Inc., 566 F.3d 1095 (D.C.

Cir. 2009) (per curiam), we treated corrective statements

about products required to be included on the company’s

website as commercial speech. Id. at 1138, 1142-45. Philip

Morris argued that disclosures on its website could not be

considered commercial speech because they were unattached

to advertisements. We disagreed. Id. at 1143. Commercial

speech, we held, “include[s] material representations about

the efficacy, safety, and quality of the advertiser’s product,

and other information asserted for the purpose of persuading

the public to purchase” (or, given the corrective disclosures at

issue, not to purchase) “the product.” Id.

The Conflict Minerals Rule likewise calls for website

disclosures about a company’s products with an eye towards a

potential commercial purchase. The conflict minerals

disclosure, the Commission explained in announcing the

Rule, “provide[s] information” about a product “that is

material to an investor’s understanding of the risks in an

issuer’s reputation and supply chain.” Conflict Minerals, 77

Fed. Reg. 56,274, 56,276 (Sept. 12, 2012). That information

self-evidently aims at a prospective commercial transaction:

an investor’s decision whether to purchase or invest in the

9

issuer’s securities. The Rule’s disclosure obligation therefore

should be eligible for relaxed review under Zauderer.

My colleagues in the majority, however, hold that it is

insufficient to conclude that the conflict minerals disclosure

involves “commercial speech.” In their view, the permissive

review normally afforded to commercial disclosure mandates

under Zauderer extends only to a sub-category of commercial

speech: advertisements and product labels. Ante at 7-8. No

other court has ever identified such a limit under Zauderer (or

for any other purpose under commercial-speech law). See

United States v. Wenger, 427 F.3d 840 (10th Cir. 2005)

(applying Zauderer to compelled disclosure in newsletter and

radio program). The majority’s newly minted constriction of

Zauderer to those particular forms of commercial speech

contradicts that decision’s core rationale.

For starters, confining Zauderer to advertising and

product labels gives rise to highly curious results. Suppose,

for instance, that the Conflict Minerals Rule required

companies to include the designation “not been found to be

‘DRC conflict free’” in prominent text on product packaging

rather than in a once-a-year report posted on a website. The

majority would subject that requirement only to Zauderer’s

less demanding form of review. It would be strange, though,

if the same compelled commercial disclosure—providing the

same information about the same product—commanded more

demanding First Amendment scrutiny if it appeared in a

single yearly report on the seller’s website instead of on every

product label. After all, if faced with the choice between an

annual website report and product packaging, a seller would

predictably opt for the former. Not only would the company

prefer to post the disclosure once a year instead of printing it

on every product label, but even as to a single product label,

the limited physical space on a product’s packaging makes for

10

a less desirable forum for a compelled commercial disclosure

than the unlimited virtual space on a company website.

The majority’s approach, though, would run in the

opposite direction. It would impose a more searching First

Amendment standard on a disclosure that imposes a less

burdensome requirement on the speaker. The anomaly in that

result, contrary to the majority’s suggestion, ante at 11 n.14,

has little to do with AMI’s application of Zauderer to contexts

beyond prevention of consumer deception. After all, if a

requirement to include a disclosure on every product label

was aimed to prevent consumer deception, the majority would

still subject that requirement only to deferential Zauderer

review. But if the same compelled disclosure appeared in a

once-a-year website report, the majority would apply a more

searching First Amendment standard to that less restrictive

obligation. It is entirely unclear why that should be so.

Nothing in Zauderer supports that counter-intuitive

result. To the contrary, Zauderer’s basic rationale holds no

less true across the full range of commercial speech than in

the sub-category consisting of advertisements and product

labels. The decision, by its terms, is grounded in the

recognition that “the extension of First Amendment protection

to commercial speech is justified principally by the value to

consumers of the information such speech provides.” 471

U.S. at 651 (emphasis added). That is why a commercial

speaker has only a “minimal” interest in withholding

disclosure of factual information about its products. Id. That

reason for a permissive approach to disclosure obligations in

the commercial sphere applies to every form of “commercial

speech,” all of which yields the “value to consumers”

animating the Court’s approach. Id.

11

To be sure, the Zauderer Court unsurprisingly used the

word “advertising” numerous times in the relevant part of the

opinion, see ante at 8-9, but only because that was the

particular factual context in which the case arose. For what

it’s worth, the Court also used “commercial speech” and

“commercial speaker” a number of times in the same part of

the opinion when explaining the rationale for the relaxed First

Amendment standard it set forth, 471 U.S. at 650-52, and it

also did so when framing the question it addressed in that part

of its opinion, id. at 629. What matters is that the Court’s

driving rationale, as the Court itself said, applies to

“commercial speech” writ large, not just (and not any more

so) to advertising alone. Id. at 651.

Indeed, the majority would extend Zauderer beyond

traditional advertising to encompass product labels, as it must

after AMI. But tellingly, AMI itself did not conceive of the

possibility that Zauderer might apply only to that decision’s

specific factual context of advertising (in which event AMI

would have needed to assess whether Zauderer also applies to

product labels). Rather, AMI examined the range of

government interests to which Zauderer pertains on the

natural assumption that, whatever the scope of those interests,

Zauderer applies to “commercial speech,” 760 F.3d at 21, not

just to certain forms of commercial speech.

Contrary to the majority’s suggestion, ante at 9-11, the

Supreme Court’s post-Zauderer decisions do not indicate

otherwise. In Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, a case that had nothing to do with

commercial speech, the Court simply quoted Zauderer’s

observation that the government may at times “prescribe what

shall be orthodox in commercial advertising.” 515 U.S. 557,

573 (1995) (quoting Zauderer, 471 U.S. at 651). In United

States v. United Foods, Inc., the Court described Zauderer as

12

“involving attempts by a State to prohibit certain voluntary

advertising by licensed attorneys.” 533 U.S. 405, 416 (2001).

The Court then restated Zauderer’s outcome, i.e., that it

permitted “a rule requiring that attorneys who advertised by

their own choice and who referred to contingent fees should

disclose that clients might be liable for costs.” Id. Those

references in United Foods and Hurley accurately describe

Zauderer’s factual context. But there is no reason to think

that the references to “advertising” in any way confined

Zauderer’s holding.

In short, nothing in Zauderer or any subsequent decision

suggests that Zauderer review applies only to conventional

advertisements, much less to advertisements plus product

labels. Zauderer is a decision about compelled commercial

speech. This is such a case.

III.

Once we conclude that the Conflict Minerals Rule

regulates “commercial speech,” the next question is whether

the Rule should be examined under the relaxed standard set

forth in Zauderer or the more restrictive test of Central

Hudson. Because the Rule compels rather than restricts

commercial speech, it triggers permissive review under

Zauderer as long as it requires disclosure of “purely factual

and uncontroversial information.” AMI, 760 F.3d at 27

(quoting Zauderer, 471 U.S. at 651). And while AMI

reaffirmed that only “purely factual and uncontroversial”

disclosures qualify for Zauderer review, we had no occasion

in AMI to define precisely what that standard entails. See 760

F.3d at 27. Inasmuch as “the criteria triggering the

application of Zauderer” were “substantially unchallenged,”

we reasoned, whatever may be the precise meaning of “purely

13

factual and uncontroversial,” the country-of-origin labeling at

issue met that standard. Id.

There was no question, for instance, that the country-of-

origin disclosure was “purely factual.” As to “controversial,”

we understood that a disclosure might be “controversial” in

the “sense” of “disagree[ment] with the truth of the facts

required to be disclosed,” but the challengers raised no claim

that the country-of-origin disclosure was “controversial in that

sense.” Id. Nor did we perceive how the disclosure might be

seen as “controversial” in any other sense, i.e., “for some

reason other than dispute about simple factual accuracy.” Id.

We made no effort to identify any such additional meaning of

“controversial” that might matter under Zauderer, other than

to note that a disclosure “could be so one-sided or

incomplete” as to fall outside Zauderer’s zone. Id. But the

challengers had made no argument along those lines. Id. The

upshot is that AMI left it to a future panel to expound on the

contours of “purely factual and uncontroversial.”

In assessing whether the conflict minerals disclosure

squares with the phrase “purely factual and uncontroversial,”

it is important to bear in mind that phrase comes from a

judicial opinion, not a statute. And the “language of an

opinion is not always to be parsed as though we were dealing

with language of a statute.” Reiter v. Sonotone Corp., 442

U.S. 330, 341 (1979). Language in a judicial opinion should

be “read in context,” id., taking into account the whole of the

court’s analysis. Here, that context starts with Zauderer’s

firm grounding in the reason for protecting commercial

speech in the first place: its value in providing consumers

with useful information about products and services. 471

U.S. at 651; Milavetz, 559 U.S. at 249-50.

14

That purpose is honored when a disclosure mandate calls

for dissemination to consumers of “purely factual” and

“accurate” information about a product, as Zauderer itself

indicates. Zauderer, 471 U.S. at 651 & n.14. That means, at

the least, that the “factual” disclosure must be non-deceptive.

It also means that the government cannot attempt to prescribe,

under the guise of requiring disclosure of “purely factual”

information, “what shall be orthodox in politics, nationalism,

religion, or other matters of opinion.” Id. at 651 (emphasis

added) (quoting W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624, 642 (1943)). If a compelled statement

communicates a “matter of opinion,” it of course would not

be “purely factual.” To qualify as “purely factual and

uncontroversial,” in short, the disclosed information must in

fact be “factual,” and it must also be “uncontroversially” so,

in the sense that that there could be no “disagree[ment] with

the truth of the facts required to be disclosed.” AMI, 760 F.3d

at 27.

Both pieces of that inquiry do important work. The

“purely factual” inquiry looks to the nature of the information

disclosed—is it entirely factual or does it communicate

subjective opinion? If the disclosure communicates

subjective opinion, or something other than “purely factual”

information, Zauderer does not apply. But even if the

disclosure qualifies as “purely factual,” it would still fall

outside of Zauderer review if the accuracy of the particular

information disclosed were subject to dispute. The

requirement that disclosures be “uncontroversial” in addition

to “purely factual” thereby removes from Zauderer’s purview

disclosures whose accuracy is contestable. AMI in fact

assumes “controversial” in this context means exactly that: a

“dispute about . . . factual accuracy.” 760 F.3d at 27.

15

That reading draws support from the Supreme Court’s

most recent invocation of the Zauderer standard in Milavetz,

559 U.S. 229. There, the Court applied the Zauderer standard

without once reciting the phrase “purely factual and

uncontroversial.” Instead, the Court concluded that the

challenged disclosure mandate shared “the essential features

of the rule at issue in Zauderer”—namely, that the disclosure

involved “only an accurate statement” of “factual

information.” Id. at 249-50 (emphasis added). That approach

is consistent with a reading of “purely factual and

uncontroversial” that refrains from giving “uncontroversial” a

meaning wholly untethered to the core question of whether

the disclosure is “factual.” If a disclosure is factual, and if the

truth of the disclosed factual information is incontestable (i.e.,

if the facts are indisputably accurate), the interest in arming

consumers with truthful, factual information about products

calls for relaxed review under Zauderer.

It is also worth noting what “purely factual and

uncontroversial” does not mean. While it might be said that

the Conflict Minerals Rule’s disclosure requirement touches

on a “controversial” topic, that alone cannot render the

disclosure “controversial” in the sense meant by Zauderer.

Otherwise, our decision in AMI presumably would have

turned out differently. The country-of-origin disclosure in

that case—as the majority points out, ante at 21-22—could be

seen to involve a “controversial” issue. And while AMI

recognizes that a disclosure could be conceived of as

“controversial” for “some reason other than dispute about

simple factual accuracy,” 760 F.3d at 27, the court did not say

that any such broader understanding of “controversial” would

necessarily count under Zauderer. In fact, the court described

only one such example of “controversial”—a disclosure that

is “one-sided or incomplete,” id.—and an understanding of

16

“controversial” centered on factual accuracy would

comfortably deal with that sort of misleading disclosure.

Applying those principles here, I would conclude that the

requirement to identify whether a product has “been found to

be ‘DRC conflict free’” calls for disclosure of “purely factual

and uncontroversial” information. The term “DRC conflict

free” is a term of art defined in the Rule and statute: a

product is “DRC conflict free” if it contains no “conflict

minerals” originating in the DRC or adjoining countries that

finance armed groups in those countries. See 15 U.S.C.

§ 78m(p)(1)(A)(ii), (D); 77 Fed. Reg. at 56,321. The question

whether a product has been “found to be ‘DRC conflict free’”

thus calls for a “factual” response: the product either has, or

has not, been “found to be ‘DRC conflict free’” under the

statutory definition. There is nothing non-factual about the

required disclosure, nor is the factual accuracy of the

disclosure subject to dispute. If geographic information about

the sourcing of meat products qualifies as “purely factual and

uncontroversial,” as we held in AMI, 760 F.3d at 27, so, too,

does geographic information about the sourcing of a product’s

component minerals.

Appellants contend that the mandated catchphrase “not

been found to be ‘DRC conflict free’” is “highly misleading”

and therefore should be ineligible for Zauderer review. NAM

Supp. Br. 16. Appellants are correct that misleading

disclosures would not qualify for Zauderer’s relaxed standard.

A misleading disclosure, by definition, would not convey

accurate information to a consumer, and it therefore would

fail to qualify as “uncontroversial” in the sense discussed

above. In fact, a misleading disclosure would run into a more

basic First Amendment problem still. Because “[t]he First

Amendment's concern for commercial speech is based on the

informational function of advertising,” misleading speech in

17

the commercial realm gets no constitutional protection in the

first place. Central Hudson, 447 U.S. at 563-64.

The conflict minerals disclosure, however, is not

misleading. The phrase “not been found to be ‘DRC conflict

free,’” even considered in isolation, seems unlikely to be

misunderstood. At worst, the language would elicit some

uncertainty about its meaning, which would just direct the

reader to the statutory definition. After all, the words “DRC

conflict free” appear in quotation marks within the broader

description “not been found to be ‘DRC conflict free,’” see 77

Fed. Reg. at 56,321, alerting an uninitiated reader to the

phrase’s status as a term of art.

Any possibility of misperception seems especially remote

in light of the setting in which the catchphrase appears. The

phrase “not been found to be ‘DRC conflict free’” is

embedded within a broader set of disclosures about an

issuer’s due-diligence measures. Before characterizing any

product as having “not been found to be ‘DRC conflict free,’”

the Commission obligates an issuer to provide “[a] description

of the measures the [issuer] has taken to exercise due

diligence on the source and chain of custody” of the minerals

used in its products. Securities and Exchange Commission,

OMB No. 3235-0697, Form SD Specialized Disclosure

Report 3 (2014). Those due-diligence measures assess

whether a product’s sources in the DRC or an adjoining

country come from mines that finance or benefit armed

groups. When the phrase “not been found to be ‘DRC

conflict free’” appears in the midst of an extensive discussion

of measures aimed to ascertain the origins of a product’s

minerals in conflict-ridden countries in the DRC region, it

seems readily apparent how the phrase is to be understood.

18

An issuer, in any event, retains the ability to eliminate all

doubt about the phrase’s meaning. The Rule allows an issuer

to elaborate on the catchphrase’s meaning in any manner it

would like. As the Supreme Court has noted, a speaker’s

ability to “convey[] any additional information” it desires is a

factor weighing in favor of Zauderer review. Milavetz, 559

U.S. at 250. Here, the Commission explicitly instructs issuers

that they may include in their disclosures any explanatory

information they deem warranted. As the Commission

understood, “[t]his allows issuers to include the statutory

definition of ‘DRC conflict free’ in the disclosure to make

clear that ‘DRC conflict free’ has a very specific meaning.”

77 Fed. Reg. at 56,322.

The Commission also provided illustrative language. An

“issuer could state: ‘The following is a description of our

products that have not been found to be “DRC conflict free”

(where “DRC conflict free” is defined under the federal

securities laws to mean . . . ).’” Id. at 56,322 n.562. And if an

issuer is unable to pinpoint the source of the minerals in

certain of its products, the Commission further explained, an

issuer could say something like the following:

Because we cannot determine the origins of

the minerals, we are not able to state that

products containing such minerals do not

contain conflict minerals that directly or

indirectly finance or benefit armed groups in

the Democratic Republic of the Congo or an

adjoining country. Therefore, under the

federal securities laws we must describe the

products containing such minerals as having

not been found to be ‘DRC conflict free.’

Those products are listed below.

19

Id. It is difficult to understand what could be seen as

misleading or non-factual about that kind of disclosure.

That language does not “require[] an issuer to tell

consumers that its products are ethically tainted,” much less

“to confess blood on its hands.” Ante at 24. It instead

communicates a statement of fact about the geographic source

of the minerals in its products—i.e., that the issuer could not

determine with certainty whether component minerals directly

or indirectly finance armed groups in the DRC region, thus

obligating the issuer to describe the products as having “not

been found to be ‘DRC conflict free.’”

To be sure, an issuer presumably would prefer to avoid

making any such disclosure. But the same could be said of a

host of commonplace (and entirely unobjectionable)

requirements to disclose factual information about products to

consumers. A company presumably would rather avoid

reporting calorie counts and nutritional information about

unhealthy food products, see New York State Restaurant

Ass’n v. New York City Board of Health, 556 F.3d 114 (2d

Cir. 2009), or disclosing that its product contains mercury, see

National Electronic Manufacturers Ass’n v. Sorrell, 272 F.3d

104 (2d Cir. 2001). Such disclosures of course can elicit a

reaction by consumers—that is often the point, as with the

country-of-origin rule upheld in AMI, see 760 F.3d at 24—but

the disclosures still remain factual and truthful. And while it

is true that a company would be required to make the conflict

minerals disclosure even if it “condemns the atrocities of the

Congo war in the strongest terms,” ante at 24, there is no

possibility of investor confusion about the company’s views

in that regard: the Rule gives a company full leeway to state

its position explicitly, in the strongest terms, in its disclosure.

20

None of this is to grant the government carte blanche to

compel commercial speakers to voice any prescribed set of

words as long as the words are defined by statute or

regulation. Zauderer does not grant the government that kind

of license. The government, for instance, could not

misleadingly redefine “peace” as “war,” and then compel a

factual statement using the term “peace” on the theory that a

consumer could consult the government’s redefinition to learn

that “peace” in fact means “war” in the specific

circumstances. See ante at 23 n.29. A consumer would have

no reason to suppose that the word “peace” is a stylized term

of art misleadingly redefined to be something far different

from its ordinary meaning.

Nor, for similar reasons, could the government compel

expression of a “matter[] of opinion,” Zauderer, 471 U.S. at

651, by redefining the matter in factual terms, especially if

(unlike here) there were no opportunity for the speaker to

elaborate as it sees fit on the relationship between the term of

art and the statutory definition. So a statement that

immediately rings as a matter of opinion (e.g., “this product is

environmentally unsustainable,” see ante at 23) would remain

outside the fold of Zauderer even if it were reconceptualized

as factual in a statutory definition (e.g., a product qualifies as

“environmentally unsustainable” if, as a factual matter, it

releases x units of ozone in y hours). Insofar as the

unelaborated label “environmentally unsustainable” could

then be characterized as “factual,” it still would not count as

“purely” factual because it continues fundamentally to come

across as a matter of opinion.

Of course, there could well be difficult questions of

application at the margins, some hypothetical and others

perhaps actual. See ante at 20-22. That is not entirely

uncommon in the area of the First Amendment, in which

21

standards at times have been characterized as “elusive” in

their application. AMI, 760 F.3d at 23. In certain situations,

moreover, constitutional protections outside of the First

Amendment might constrain the government’s ability to

compel disclosures—for instance, if the disclosures facilitated

private discrimination. See Palmore v. Sidoti, 466 U.S. 429

(1984). But whatever may be the complexities of applying

the standard in discrete situations, as a matter of precedent, an

obligation in the commercial sphere to disclose “purely

factual and uncontroversial” information about a product

draws deferential First Amendment review. Zauderer, 471

U.S. at 651. The Conflict Minerals Rule, in my view, falls

within that category. Zauderer therefore should govern.

IV.

Although I think Zauderer’s permissive standard

provides the governing framework for review of the Conflict

Minerals Rule, I would conclude that the Rule satisfies even

the more demanding standard set forth in Central Hudson.

And of course, if the Rule passes muster under Central

Hudson, it necessarily survives the “less exacting scrutiny

described in Zauderer.” Milavetz, 559 U.S. at 249.

A.

To satisfy Central Hudson, the Commission must first

demonstrate that the disclosure requirement advances a

substantial governmental interest. The parties agree that

Congress’s overarching purpose in enacting the conflict

minerals statute was to “promote peace and security” in the

DRC. But Central Hudson calls for identifying the

“substantial state interest” advanced by the challenged law

“with care” and precision. Edenfield v. Fane, 507 U.S. 761,

767-68 (1993). Defining the governmental interest at a high

22

level of abstraction (i.e., promotion of peace) naturally can

make it challenging to assess whether the law “directly

advances” that interest, Central Hudson, 447 U.S. at 566, a

burden that remains unsatisfied by “mere speculation or

conjecture,” Edenfield, 507 U.S. at 770.

Here, the Conflict Minerals Rule’s disclosure

requirement does not aim simply to “promote peace and

security” in the DRC in some highly general sense. The

statute and the Rule both manifest a more specific intention to

promote peace and security in the DRC by reducing funding

to armed groups in the DRC region from trade in conflict

minerals. Congress thus determined that “the exploitation

and trade of conflict minerals originating in the Democratic

Republic of the Congo is helping to finance” violent conflict

in the region and is “contributing to an emergency

humanitarian situation therein.” Dodd-Frank Wall Street

Reform and Consumer Protection Act, Pub. L. No. 111-203,

§ 1502(a), 124 Stat. 1376, 2213 (2010). Additionally, the

statute defines the term “DRC conflict free” by reference to a

product that “does not contain conflict minerals that directly

or indirectly finance or benefit armed groups in the

Democratic Republic of the Congo or an adjoining country.”

15 U.S.C. § 78m(p)(1)(D). And the statute defines the term

“conflict mineral” to include any “mineral or its derivatives

determined by the Secretary of State to be financing conflict

in the Democratic Republic of the Congo or an adjoining

country.” Dodd-Frank Act § 1502(e)(4). The Commission

therefore understood “Congress’s main purpose to have been

to attempt to inhibit the ability of armed groups . . . to fund

their activities by exploiting the trade in conflict minerals.”

77 Fed. Reg. at 56,275-76.

The Commission observed, as the majority points out,

ante at 6 & n.7, that the purpose promoted by the statute—and

23

hence the Rule— is “different from the economic or investor

protection benefits that [the Commission’s rules] ordinarily

strive to achieve.” 77 Fed. Reg. at 56,350. The Commission,

tasked with implementing the statute through a disclosure

rule, see 15 U.S.C. § 78m(p)(1), had little choice about the

Rule’s purpose. Even if that purpose differs from the interests

usually served by disclosures in the securities realm, it does

not differ from the kind of interests frequently promoted by

governmental disclosure requirements more generally. The

country-of-origin labeling requirement we upheld in AMI, for

example, was adopted in part on the expectation that

consumers would prefer meat with a certain geographic origin

and would act on that preference when given the information.

See 760 F.3d. at 24. The Conflict Minerals Rule likewise

operates on the basis of assumptions about the reaction of

investors to disclosures about a product’s place of origin.

At any rate, the ultimate question is whether the interest

promoted by the Rule, however unique, satisfies Central

Hudson review. I would conclude that interest qualifies as a

substantial one under Central Hudson. We have noted “the

pedestrian nature of those interests affirmed as substantial,”

and have even asked “whether any governmental interest—

except those already found trivial by the [Supreme] Court—

could fail to be substantial.” Kansas v. United States, 16 F.3d

436, 443 (D.C. Cir. 1994); see AMI, 760 F.3d at 23. The

parties here agree that the overarching interest in promoting

peace and security in the DRC region readily qualifies as

substantial. The more focused objective of reducing funding

to armed groups in that region from trade in conflict minerals

should likewise count as substantial, particularly given that it

operates in direct service of the concededly substantial

interest in promoting peace and security there.

24

B.

Once we conclude that the Rule aims to promote a

“substantial” interest, Central Hudson calls on us to assess

whether the disclosure obligation “directly advance[s] the

state interest involved,” and does so in a way that is

reasonably tailored to serve that end. 447 U.S. at 564.

Applying those standards, I, like the district court, would hold

that the conflict minerals disclosure requirement passes

constitutional muster.

First, the Rule “directly advances” the government’s

substantial interest in reducing the flow of funds to armed

groups in the DRC region from trade in conflict minerals.

“[E]videntiary parsing,” we recognized in AMI, “is hardly

necessary when the government uses a disclosure mandate to

achieve a goal of informing consumers about a particular

product trait.” 760 F.3d at 26. Here, the Rule shines a light

on a manufacturer’s use of conflict minerals from the DRC

region. As the Commission explained, the Rule (and statute)

“use the securities laws disclosure requirements to bring

greater public awareness of the source of issuers’ conflict

minerals and to promote the exercise of due diligence on

conflict mineral supply chains.” 77 Fed. Reg. at 56,275.

By requiring issuers to perform due diligence on their

product supply chains and to disclose the results of that

examination to investors and consumers, the Rule encourages

manufacturers voluntarily to reduce their reliance on conflict

minerals from the DRC and adjoining countries. And by

making information about mineral sourcing readily available

to investors and consumers, the disclosure regime enables

them to exert pressure on manufacturers to minimize the use

of conflict minerals from the DRC region. The Rule therefore

makes conflict minerals from that area substantially less

25

appealing to manufacturers, diminishing the market for those

minerals.

With regard to the means-ends fit, the Supreme Court

“has made clear that the government’s burden . . . is to show

[only] a ‘reasonable fit’ or a ‘reasonable proportion’ between

means and ends.” AMI, 760 F.3d at 26 (citations omitted).

“What [the Court’s] decisions require is a ‘fit between the

legislature’s ends and the means chosen to accomplish those

ends’—a fit that is not necessarily perfect, but reasonable; that

represents not necessarily the single best disposition but one

whose scope is ‘in proportion to the interest served.’” Bd. of

Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)

(quoting Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478

U.S. 328, 341 (1986), and In re R.M.J., 455 U.S. 191, 203

(1982)). “Within those bounds we leave it to governmental

decisionmakers to judge what manner of regulation may best

be employed.” Id.

Here, the disclosure rule is at least reasonably designed to

encourage manufacturers to reduce their reliance on conflict

minerals from the DRC region, thereby diminishing the extent

to which armed groups in the area gain funding through trade

in those minerals. As we observed in AMI, “[t]o the extent

that the government’s interest is in assuring that consumers

receive particular information” about products, “the means-

end fit is self-evidently satisfied when the government acts

only through a reasonably crafted mandate to disclose ‘purely

factual and uncontroversial information’ about attributes of

the product or service being offered.” 760 F.3d at 26.

Consequently, that “particular method of achieving a

government interest will almost always demonstrate a

reasonable means-ends relationship.” Id.

26

This case is no exception. The inference that the

disclosure obligations would affect manufacturers in a manner

tending to reduce the overseas trade in conflict minerals rests

on “sound reasoning.” Century Commc’ns Corp. v. FCC, 835

F.2d 292, 304 (D.C. Cir. 1987). Deference to the political

branches’ predictive judgment to that effect is all the more

warranted because it arises in the arena of foreign affairs. See

Holder v. Humanitarian Law Project, 561 U.S. 1, 33-36

(2010). “[W]hen it comes to collecting evidence and drawing

factual inferences in this area, ‘the lack of competence on the

part of the courts is marked,’ and respect for the

Government’s conclusions is appropriate.” Id. at 34 (citation

omitted) (quoting Rostker v. Goldberg, 453 U.S. 57, 65

(1981)). “In this context, conclusions must often be based on

informed judgment rather than concrete evidence, and that

reality affects what we may reasonably insist on from the

Government.” Id. at 34-35. Here, there is more than an

adequate foundation for concluding that the conflict minerals

disclosure requirement reasonably furthers its aims.

Nor is there a basis for finding a lack of a “reasonable

means-ends relationship” on the ground that the challenged

disclosure mandate could be seen as “‘unduly burdensome’ in

a way that ‘chills protected commercial speech.’” AMI, 760

F.3d at 26 (quoting Zauderer, 471 U.S. at 651). The Rule

mandates the use of the contested phrase “not found to be

‘DRC conflict free’” as part of an effort to “present the

information in a standardized manner,” so that investors and

consumers “will benefit from the standardization and

simplification of the disclosure.” 77 Fed. Reg. at 56,348.

Obligating issuers to use a uniform, shorthand phrase—in lieu

of a technical and lengthy statutory definition—directly

furthers that objective. The requirement for issuers to post the

disclosure report on their websites likewise promotes the

ability of investors and consumers to access information about

27

manufacturers’ use of conflict minerals. I would therefore

find the requisite “reasonable fit” between the challenged

disclosure regime and the government’s interest in reducing

funding to armed groups in the DRC region from the trade in

conflict minerals.

C.

My colleagues in the majority approach the matter

differently. They invalidate the Rule based on doubts about

whether its disclosure obligation in fact will alleviate the

conflict in the DRC region. Ante at 15-17. Those doubts are

grounded in “[p]ost-hoc evidence” that, in their eyes, gives

rise to “uncertainty about whether the conflict minerals rule

either alleviates or aggravates the stated problem.” Id. at 16.

In my respectful view, the majority’s approach is flawed on

multiple levels.

First, even if there were uncertainty about the merits of

Congress’s and the Commission’s predictive judgments

concerning the effects of the disclosure requirement on the

conflict in the DRC region, we should defer to the political

branches’ assessments. Congress determined “that the

exploitation and trade of conflict minerals originating in the

Democratic Republic of Congo is helping to finance conflict

characterized by extreme levels of violence in the Democratic

Republic of Congo, particularly sexual- and gender-based

violence.” Dodd-Frank Act § 1502(a). Congress therefore

called for “disclosures relating to conflict minerals originating

in the Democratic Republic of the Congo” to ameliorate the

situation. 15 U.S.C. § 78m(p) (title). Predictive judgments

about matters such as the overseas trade in conflict minerals

lie uniquely within the expertise of Congress and the

Executive. The Supreme Court stressed the need to respect

such judgments even when rejecting a First Amendment

28

challenge under strict scrutiny. Humanitarian Law Project,

561 U.S. at 33-36. There is all the more cause for doing so

when applying less rigorous scrutiny under Central Hudson.

See AMI, 760 F.3d at 25-26.

Second, it seems particularly unwarranted to question the

political branches’ predictive judgments on the basis of post

hoc assessments of a law’s ongoing effects on the ground (let

alone in the face of other post hoc assessments pointing in the

opposite direction, ante at 16-17). I would think the proper

frame of reference for assessing the means-ends fit involves

an ex ante examination of Congress’s and the Commission’s

outlook when enacting the statute and promulgating the Rule.

Whatever may be the actual effect of the statute and Rule—

including the possibility that they may have had unanticipated

consequences—their constitutionality would not turn on a

post hoc referendum on their effectiveness at a particular

point in time. Otherwise, a law’s constitutionality might wax

and wane depending on the precise time when its validity is

assessed. I would think the relevant question is whether the

disclosure regime, at the time of its establishment, was

reasonably designed to reduce the flow of funding to armed

groups in the DRC through the conflict minerals trade. I

believe it was.

Finally, the particular post hoc concerns given effect by

the majority should afford no basis for invalidating the Rule.

The Rule seems to have had its desired effect even as a matter

of after-the-fact assessment, with “companies in the United

States . . . now avoiding the DRC,” ante at 16, substantially

reducing the money entering the country through the sale of

conflict minerals. The law, in other words, is working as

anticipated. The problem seen by some observers is that the

law nonetheless has had unintended ripple effects. For

instance, some workers who lost their jobs because of the

29

reduced demand for minerals occasioned by the law may have

then turned around and joined armed groups in the region,

adding to the strength of those groups.

Those sorts of unintended, tertiary consequences should

not form a basis for invalidating the Rule. Even assuming

Congress (and the Commission in implementing Congress’s

mandate) did not foresee all of the repercussions of the

disclosure regime which might someday come to pass, the law

was reasonably designed to further its aim of reducing

funding for armed groups through the conflict minerals trade.

Indeed, the law has done precisely that. If unanticipated

downstream effects eventually call into question the ongoing

desirability of a law working as intended, it should be up to

the political branches to alter or repeal it, not to the judicial

branch to invalidate it. For that reason, as well as the others

explained in this opinion, I would uphold the Conflict

Minerals Rule’s disclosure mandate against appellants’ First

Amendment challenge.

APPENDIX

National Association of Manufacturers v. SEC, No. 13-

5252, 748 F.3d 359 (D.C. Cir. 2014):

Before: SRINIVASAN, Circuit Judge, and SENTELLE and

RANDOLPH, Senior Circuit Judges.

Opinion for the court filed by Senior Circuit Judge

RANDOLPH.

Opinion concurring in part filed by Circuit Judge

SRINIVASAN

RANDOLPH, Senior Circuit Judge:

I.

For the last fifteen years, the Democratic Republic of the

Congo has endured war and humanitarian catastrophe. Millions

have perished, mostly civilians who died of starvation and

disease. Communities have been displaced, rape is a weapon,

and human rights violations are widespread.

Armed groups fighting the war finance their operations by

exploiting the regional trade in several kinds of minerals. Those

minerals—gold, tantalum, tin, and tungsten1—are extracted from

technologically primitive mining sites in the remote eastern

Congo. They are sold at regional trading houses, smelted nearby

or abroad, and ultimately used to manufacture many different

1

See Conflict Minerals, 77 Fed. Reg. 56,274, 56,284-85 (Sept.

12, 2012).

2

APPENDIX

products.2 Armed groups profit by extorting, and in some cases

directly managing, the minimally regulated mining operations.

In 2010, Congress devised a response to the Congo war.

Section 1502 of the Dodd-Frank Wall Street Reform and

Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376

(relevant parts codified at 15 U.S.C. §§ 78m(p), 78m note

(‘Conflict Minerals’)), requires the Securities and Exchange

Commission—the agency normally charged with policing

America’s financial markets—to issue regulations requiring

firms using “conflict minerals” to investigate and disclose the

origin of those minerals. See 15 U.S.C. § 78m(p)(1)(A).

The disclosure regime applies only to “person[s] described”

in the Act. See id. A “person is described . . . [if] conflict

minerals are necessary to the functionality or production of a

product manufactured by such person.” Id. § 78m(p)(2). A

described person must “disclose annually, whether [its

necessary] conflict minerals . . . did originate in the [Congo] or

an adjoining country.” Id. § 78m(p)(1)(A). If those minerals “did

originate” in the Congo or an adjoining country (collectively,

“covered countries”) then the person must “submit [a report] to

the Commission.” Id. The report must describe the “due

diligence” measures taken to establish “the source and chain of

custody” of the minerals, including a “private sector audit” of

the report. Id. The report must also list “the products

manufactured or contracted to be manufactured that are not

DRC conflict free.” Id. A product is “DRC conflict free” if its

2

For example, tantalum is used in turbines, camera lenses,

medical devices, cell phones, and computers. Tin is used in plastics,

phones, and automobile parts. Tungsten is used in lighting, power

tools, and golf clubs.

3

APPENDIX

necessary conflict minerals did not “directly or indirectly

finance or benefit armed groups” in the covered countries. Id.

In late 2010, the Commission proposed rules for

implementing the Act. Conflict Minerals, 75 Fed. Reg. 80,948

(Dec. 23, 2010). Along with the proposed rules, the Commission

solicited comments on a range of issues. In response, it received

hundreds of individual comments and thousands of form letters.

Conflict Minerals, 77 Fed. Reg. 56,274, 56,277-78 (Sept. 12,

2012) (“final rule”) (codified at 17 C.F.R. §§ 240.13p-1,

249b.400). The Commission twice extended the comment period

and held a roundtable for interested stakeholders. Id. By a 3-2

vote, it promulgated the final rule, which became effective

November 13, 2012. Id. at 56,274. The first reports are due by

May 31, 2014. Id.

The final rule adopts a three-step process, which we outline

below, omitting some details not pertinent to this appeal. At step

one, a firm must determine if the rule covers it. Id. at 56,279,

56,285. The final rule applies only to securities issuers who file

reports with the Commission under sections 13(a) or 15(d) of the

Exchange Act. Id. at 56,287. The rule excludes issuers if conflict

minerals are not necessary to the production or functionality of

their products. Id. at 56,297-98. The final rule does not,

however, include a de minimis exception, and thus applies to

issuers who use very small amounts of conflict minerals. Id. at

56,298. The rule also extends to issuers who only contract for

the manufacture of products with conflict minerals, as well as

issuers who directly manufacture those products. Id. at 56,290-

92.

Step two requires an issuer subject to the rule to conduct a

“reasonable country of origin inquiry.” Id. at 56,311. The

inquiry is a preliminary investigation reasonably designed to

4

APPENDIX

determine whether an issuer’s necessary conflict minerals

originated in covered countries. Id. at 56,312. If, as a result of

the inquiry, an issuer either knows that its necessary conflict

minerals originated in covered countries or “has reason to

believe” that those minerals “may have originated” in covered

countries, then it must proceed to step three and exercise due

diligence. Id. at 56,313.3

An issuer who proceeds to step three must “exercise due

diligence on the source and chain of custody of its conflict

minerals.” Id. at 56,320. If, after performing due diligence an

issuer still has reason to believe its conflict minerals may have

originated in covered countries, it must file a conflict minerals

report. The report must describe both its due diligence efforts,

including a private sector audit,4 id., and those products that

have “not been found to be ‘DRC conflict free,’” id. at 56,322

(quoting 15 U.S.C. § 78m(p)(1)(A)(ii)). The report must also

provide detailed information about the origin of the minerals

used in those products. Id. at 56,320.

3

If the inquiry discloses that there is no reason to believe the

issuer’s conflict minerals came from covered countries or that there is

a reasonable basis for believing that the issuer’s conflict minerals

came from scrap or recycled sources, then the issuer need only file a

specialized disclosure report on the newly-created Form SD, briefly

describing its inquiry, 77 Fed. Reg. at 56,313, and provide a link to the

report on its website. Id. at 56,315. No due diligence is required.

4

To be precise, an issuer must also submit a conflict minerals

report if, as a result of its earlier inquiry, it knows that its conflict

minerals came from covered countries. 77 Fed. Reg. at 56,320. That

issuer must still perform due diligence, but the trigger for the report is

the preliminary inquiry, not the due diligence results.

5

APPENDIX

The final rule does offer a temporary reprieve. During a

two-year phase-in period (four years for smaller issuers), issuers

may describe certain products as “DRC conflict

undeterminable” instead of conflict-free or not conflict-free. Id.

at 56,321-22. That option is available only if the issuer cannot

determine through due diligence whether its conflict minerals

originated in covered countries, or whether its minerals

benefitted armed groups. Id. An issuer taking advantage of the

phase-in by describing its products as “DRC conflict

undeterminable” must still perform due diligence and file a

conflict minerals report, but it need not obtain a private sector

audit. Id.

The Commission analyzed in some detail the final rule’s

costs. Id. at 56,333-54. It estimated the total costs of the final

rule would be $3 billion to $4 billion initially, and $207 million

to $609 million annually thereafter. Id. at 56,334. To come up

with this estimate, the Commission reviewed four cost estimates

it received during the comment period, supplemented with its

own data. Id. at 56,350-54. Where possible, the Commission

also estimated or described the marginal costs of its significant

discretionary choices. Id. at 56,342-50.

The Commission was “unable to readily quantify” the

“compelling social benefits” the rule was supposed to achieve:

reducing violence and promoting peace and stability in the

Congo. Id. at 56,350. Lacking quantitative data on those issues,

the Commission explained that it could not “assess how

effective” the rule would be in achieving any benefits. Id.

Instead, the Commission relied on Congress’s judgment that

supply-chain transparency would promote peace and stability by

reducing the flow of money to armed groups. Id. at 56,275-76,

56,350. That judgment grounded many of the Commission’s

6

APPENDIX

discretionary choices in favor of greater transparency. See, e.g.,

id. at 56,288, 56,291, 56,298.

The National Association of Manufacturers challenged the

final rule, raising Administrative Procedure Act, Exchange Act,

and First Amendment claims.5 The district court rejected all of

the Association’s claims and granted summary judgment for the

Commission and intervenor Amnesty International. See Nat’l

Ass’n of Mfrs. v. SEC, 956 F. Supp. 2d 43, 46 (D.D.C. 2013).

II.

Under the Administrative Procedure Act, a court must “hold

unlawful and set aside agency action . . . found to be[] arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law[, or] in excess of statutory jurisdiction.” 5

U.S.C. § 706(2). In making these determinations, we review the

administrative record as if the case had come directly to us

without first passing through the district court. See Holland v.

Nat’l Mining Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002).

A.

The Act does not include an exception for de minimis uses

of conflict minerals. The Association claims that the rule should

have included a de minimis exception and that the Commission

erred when, during the rulemaking, it failed to recognize its

5

The Association initially filed a petition for review in this court.

After our opinion in American Petroleum Institute v. SEC, 714 F.3d

1329 (D.C. Cir. 2013), the Association moved to transfer the case to

the district court, and we granted the motion. See Per Curiam Order,

Nat’l Ass’n of Mfrs. v. SEC, No. 12-1422 (D.C. Cir. May 2, 2013).

7

APPENDIX

authority to create one and assumed that the statute foreclosed

any exception.

Although the Commission acknowledges that it had the

authority to create such an exception, see, e.g., 15

U.S.C. § 78mm(a)(1); Ala. Power Co. v. Costle, 636 F.2d 323,

360-61 (D.C. Cir. 1979), it stated during the rulemaking that a

de minimis exception “would be contrary to the [statute] and

Congressional purpose,” and that if Congress intended to

include such an exception it “would have done so explicitly” as

it did in a nearby section of Dodd-Frank. 77 Fed. Reg. at 56,298.

But we do not interpret that explanation the way the Association

does. Read in context, the Commission’s language addressed the

general purpose of the statute and the effects of its policy

choices. Congress knew that conflict minerals are often used in

very small quantities. The Commission, relying on text, context,

and policy concerns, inferred that Congress wanted the

disclosure regime to work even for those small uses. Id. A de

minimis exception would, in the Commission’s judgment,

“thwart” that goal. Id.

The Commission’s explanation was thus a far cry from a

mere “parsing of the statutory language,” Peter Pan Bus Lines,

Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350, 1354

(D.C. Cir. 2006) (quoting PDK Labs., Inc. v. DEA, 362 F.3d

786, 797 (D.C. Cir. 2004)), that has caused us to set aside

agency action in other cases. See, e.g., id. at 1353 (statute’s

“plain language” “does not permit” action); Arizona v.

Thompson, 281 F.3d 248, 253-54 (D.C. Cir. 2002) (“intent of

Congress, rather than of HHS” “does not permit” action); Alarm

Indus. Commc’ns Comm. v. FCC, 131 F.3d 1066, 1068 (D.C.

Cir. 1997) (“plain meaning” of a statute was “unambiguous”).

Nothing in the Commission’s explanation suggests, as in those

cases, that the statutory text by itself foreclosed any exception.

8

APPENDIX

Rather, the explanation “looks to be a quite ordinary

construction of a statute over which the agency has been given

interpretive authority.” PDK Labs., 362 F.3d at 807-08 (Roberts,

J., concurring in part and concurring in the judgment).

The Commission did not act arbitrarily and capriciously by

choosing not to include a de minimis exception. Because conflict

minerals “are often used in products in very limited quantities,”

the Commission reasoned that “a de minimis threshold could

have a significant impact on the final rule.” 77 Fed. Reg. at

56,298 (quoting U.S. Dep’t of State Responses to Request for

Comment). The Association suggests that this rationale would

not apply to de minimis thresholds measured by mineral use per-

issuer, instead of per-product. Although that sort of threshold

was suggested in a few comments, those comments did not

explain the merits of the proposal or compare it to other

thresholds. The Commission was not obligated to respond to

those sorts of comments. See Pub. Citizen, Inc. v. FAA, 988 F.2d

186, 197 (D.C. Cir. 1993); see also Alianza Fed. de Mercedes v.

FCC, 539 F.2d 732, 739 (D.C. Cir. 1976). In any event, the

Commission’s rationale still applies to a per-issuer exemption.

Having established that conflict minerals are frequently used in

minute amounts, the Commission could reasonably decide that

a per-issuer exception could “thwart” the statute’s goals by

leaving unmonitored small quantities of minerals aggregated

over many issuers. Though costly, that decision bears a “rational

connection” to the facts. Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

B.

As we have mentioned, the final rule requires an issuer to

conduct “due diligence” if, after its inquiry, it “has reason to

believe that its necessary conflict minerals may have originated

9

APPENDIX

in” covered countries. 77 Fed. Reg. at 56,313 (emphasis added).

According to the Association, that requirement contravenes the

statute, which requires issuers to “submit to the Commission a

report” only “in cases in which [their] conflict minerals did

originate” in covered countries. 15 U.S.C. § 78m(p)(1)(A)

(emphasis added).

The Association has conflated distinct issues. The statute

does require a conflict minerals report if an issuer has already

performed due diligence and determined that its conflict

minerals did originate in covered countries. But the statute does

not say in what circumstances an issuer must perform due

diligence before filing a report. The statute also does not list

what, if any, reporting obligations may be imposed on issuers

uncertain about the origin of their conflict minerals.

In general, if a statute “is silent or ambiguous with respect

to the specific issue at hand” then “the Commission may

exercise its reasonable discretion in construing the statute.”

Bldg. Owners & Managers Ass’n Int’l v. FCC, 254 F.3d 89,

93-94 (D.C. Cir. 2001) (quoting Chevron U.S.A., Inc. v. NRDC,

467 U.S. 837, 843 (1984)). And that discretion may be exercised

to regulate circumstances or parties beyond those explicated in

a statute. See, e.g., Mourning v. Family Publ’ns Serv., Inc., 411

U.S. 356, 371-73 (1973); Tex. Rural Legal Aid, Inc. v. Legal

Servs. Corp., 940 F.2d 685, 694 (D.C. Cir. 1991). Here, the

statute is silent with respect to both a threshold for conducting

due diligence, and the obligations of uncertain issuers. The

Commission used its delegated authority to fill those gaps, and

nothing in the statute foreclosed it from doing so.6

6

The parties also disagree over a more subtle point. The

Association concedes that due diligence can be required if an issuer

has “reason to believe” its conflict minerals “did” originate in covered

10

APPENDIX

We also reject the Association’s argument that the

Commission’s due diligence threshold was arbitrary and

capricious. The Commission adopted a lower due diligence

threshold to prevent issuers from “ignor[ing] . . . warning signs”

that their conflict minerals originated in covered countries. 77

Fed. Reg. at 56,313. In particular, the Commission wanted

issuers who encounter red flags to “learn[] the ultimate source”

of their conflict minerals. Id. at 56,314. Requiring a good-faith

inquiry does not resolve the Commission’s concerns. A good-

faith inquiry could generate red flags but, without a further due

diligence requirement, those red flags would not give way to

“ultimate” answers, which result would “undermine the goals of

the statute.” Id.

Although the Commission adopted an expansive rule, it did

not go as far as it might have, and it declined to require due

diligence by issuers who encounter no red flags in their inquiry.

Id. By doing so, the Commission reduced the costs of the final

rule, and resolved the Association’s concern that the rule will

yield a flood of trivial information. Id.

C.

By its terms, the statute applies to “Persons Described,” or

those that “manufacture[]” a product in which conflict minerals

“are necessary to the functionality or production” of the product.

15 U.S.C. § 78m(p)(2). If those persons file a conflict minerals

countries. See Oral Arg. Tr. at 4:14-5:16. Since “reason to believe”

inherently conveys uncertainty, it is unclear how that standard would

differ in practice from the Commission’s “reason to believe . . . may”

standard. Because the statute is ambiguous we need not resolve the

issue.

11

APPENDIX

report the statute requires them to describe products they

“manufacture[] or contract[] to be manufactured.” Id.

§ 78m(p)(1)(A)(i). The Commission reconciled these provisions

in an expansive fashion, applying the final rule not only to

issuers that manufacture their own products, but also to those

that only contract to manufacture. 77 Fed. Reg. at 56,290-91.

The Association claims that decision violates the statute. By

using the phrase “contracted to be manufactured” in one

provision, but only “manufactured” in another, Congress

allegedly intended to limit the scope of the latter.

The persons-described provision, though it refers expressly

to manufacturers, is silent on the obligations of issuers that only

contract for their goods to be manufactured. Standing alone, that

silence allows the Commission to use its delegated authority in

determining the rule’s scope, just as with the due diligence

provision. The Association’s argument is no more persuasive

here because Congress explicitly used the phrase “contracted to

be manufactured” in a nearby provision.

The Association invokes the canon expressio unius est

exclusio alterius. But that canon is “an especially feeble helper

in an administrative setting, where Congress is presumed to have

left to reasonable agency discretion questions that it has not

directly resolved.” Cheney R. Co., Inc. v. ICC, 902 F.2d 66, 69

(D.C. Cir. 1990); see Tex. Rural Legal Aid, 940 F.2d at 694. The

more reasonable interpretation of the statute as a whole is that

Congress simply “deci[ded] not to mandate any solution” and

left the rule’s application to contractors “to agency discretion.”

Cheney R. Co., 902 F.2d at 69 (emphasis omitted).

Potential “internal[] inconsisten[cy]” between the due

diligence and persons-described provisions also persuades us

that the statute is ambiguous. See 77 Fed. Reg. at 56,291. An

12

APPENDIX

issuer subject to the rule must describe due diligence measures

it undertakes on the source and chain of custody of “such

minerals.” 15 U.S.C. § 78m(p)(1)(A)(i). “[S]uch minerals”

refers, in the preceding paragraph, to “minerals that are

necessary as described in paragraph (2)(B).” Id. § 78m(p)(1)(A).

Paragraph (2)(B) in turn refers to minerals “necessary to . . . a

product manufactured” by a person described. Id. § 78m(p)(2)

(emphasis added). Thus, under the Association’s reading, an

issuer would not have to describe its due diligence efforts (or

even, presumably, to conduct due diligence) for products it does

not manufacture. And yet, the statute requires that same issuer

to describe its contracted-for products as not conflict free under

§ 78m(p)(1)(A)(ii) if they do not meet the statute’s definition.

We do not understand how an issuer could describe its

contracted-for products without first conducting due diligence

on those products, or why the statute would require certain

products to be described in a report without a corresponding

explanation of the related due diligence efforts. The

Commission’s interpretation is therefore reasonable because it

reconciles otherwise confusing and conflicting provisions “into

an harmonious whole.” FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000) (internal quotation omitted).

The Commission did not erroneously assume that its

interpretation was compelled by Congress. As the district court

explained, referring once to Congress’s intent as “clear” does

not establish that the Commission believed it lacked discretion.

Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 72 (quoting Ass’n of

Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 445

(D.C. Cir. 2012)). The balance of the Commission’s

explanation, as with the de minimis exception, falls well short of

the language on which we have relied to set aside agency action.

See supra at 8-9. Rather than merely parsing the statutory

language, the Commission provided policy justifications and

13

APPENDIX

structural inferences supporting its decision. 77 Fed. Reg. at

56,291.

Nor did the Commission act arbitrarily or capriciously. The

final rule applies to contractors so that issuers cannot “avoid

[its] requirements by contracting out of the manufacture” of

their products. Id. at 56,291. The Association thinks the final

rule reaches too far and overstates the risk of circumvention. But

that is a question of judgment for the Commission, which we

will not second-guess. The Commission’s explanation was

“rational,” and that is enough. State Farm, 463 U.S. at 43.

D.

The final rule’s temporary phase-in period allows issuers to

describe certain products as “DRC conflict undeterminable” and

to avoid conducting an audit. 77 Fed. Reg. at 56,320-21. The

Association claims the length of the phase-in—two years for

large issuers and four years for small issuers—is inconsistent,

arbitrary, and capricious because small issuers are part of large-

issuer supply chains. All issuers, the Association says, will

therefore face the same information problems. Not so. Large

issuers, the Commission explained, can exert greater leverage to

obtain information about their conflict minerals, id. at 56,322-

23, and they may be able to exercise that leverage indirectly on

behalf of small issuers in their supply chains. Id. at 56,323

n.570. Like the district court, we can “see the trickledown logic

underlying the Commission’s approach,” even if it does not hold

in all cases. Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 73 n.24.

III.

Two provisions require the Commission to analyze the

effects of its rules. Under 15 U.S.C. § 78w(a)(2), the

14

APPENDIX

Commission “shall not adopt any rule [under § 78m(p)] . . .

which would impose a burden on competition not necessary or

appropriate” to advance the purposes of securities laws. Also,

when the Commission “is engaged in rulemaking,” it must

“consider, in addition to the protection of investors, whether the

action will promote efficiency, competition, and capital

formation.” 15 U.S.C. § 78c(f). The Association, citing several

of our recent opinions, alleges that the Commission violated

those sections because it did not adequately analyze the costs

and benefits of the final rule. See Bus. Roundtable v. SEC, 647

F.3d 1144 (D.C. Cir. 2011); Am. Equity Inv. Life Ins. Co. v.

SEC, 613 F.3d 166 (D.C. Cir. 2010); Chamber of Commerce v.

SEC, 412 F.3d 133 (D.C. Cir. 2005).7

We do not see any problems with the Commission’s cost-

side analysis. The Commission exhaustively analyzed the final

rule’s costs. See 77 Fed. Reg. at 56,333-54. It considered its own

data as well as cost estimates submitted during the comment

period, id. at 56,350-54, and arrived at a large bottom-line figure

that the Association does not challenge. Id. at 56,334. The

Commission specifically considered the issues listed in § 78c(f)

and concluded that the rule would impose competitive costs, but

have relatively minor or offsetting effects on efficiency and

capital formation. 77 Fed. Reg. at 56,350-51. The Association

does not dispute those conclusions.

Instead, the Association argues on the benefit side that the

Commission failed to determine whether the final rule would

7

Dodd-Frank independently requires the Comptroller General of

the United States to submit annual reports to Congress “assess[ing ]

the effectiveness of . . . 15 U.S.C. § 78m(p) in promoting peace and

security in the” covered countries. 15 U.S.C. § 78m note (‘Conflict

Minerals’).

15

APPENDIX

actually achieve its intended purpose. But we find it difficult to

see what the Commission could have done better. The

Commission determined that Congress intended the rule to

achieve “compelling social benefits,” id. at 56,350, but it was

“unable to readily quantify” those benefits because it lacked data

about the rule’s effects. Id.

That determination was reasonable. An agency is not

required “to measure the immeasurable,” and need not conduct

a “rigorous, quantitative economic analysis” unless the statute

explicitly directs it to do so. Inv. Co. Inst. v. Commodity Futures

Trading Comm’n, 720 F.3d 370, 379 (D.C. Cir. 2013) (internal

quotation marks omitted); see Chamber of Commerce, 412 F.3d

at 360. Here, the rule’s benefits would occur half-a-world away

in the midst of an opaque conflict about which little reliable

information exists, and concern a subject about which the

Commission has no particular expertise. Even if one could

estimate how many lives are saved or rapes prevented as a direct

result of the final rule, doing so would be pointless because the

costs of the rule—measured in dollars—would create an apples-

to-bricks comparison.

Despite the lack of data, the Commission had to promulgate

a disclosure rule. 15 U.S.C. § 78m(p)(1)(A). Thus, it relied on

Congress’s “determin[ation] that [the rule’s] costs were

necessary and appropriate in furthering the goals” of peace and

security in the Congo. 77 Fed. Reg. at 56,350. The Association

responds that the Commission only had to adopt some disclosure

rule; Congress never decided the merits of the Commission’s

discretionary choices. True enough. But Congress did conclude,

as a general matter, that transparency and disclosure would

benefit the Congo. See 15 U.S.C. § 78m note. And the

Commission invoked that general principle to justify each of its

discretionary choices. See id. at 56,291; (contractors to

16

APPENDIX

manufacture); id. at 56,298 (no de minimis exception); id. at

56,313-14 (due diligence standard); id. at 56,322 (phase-in).

What the Commission did not do, despite many comments

suggesting it, was question the basic premise that a disclosure

regime would help promote peace and stability in the Congo. If

the Commission second-guessed Congress on that issue, then it

would have been in an impossible position. If the Commission

had found that disclosure would fail of its essential purpose,

then it could not have adopted any rule under the Association’s

view of §§ 78w(a)(2) and 78c(f). But promulgating some rule is

exactly what Dodd-Frank required the Commission to do.

IV.

This brings us to the Association’s First Amendment claim.

The Association challenges only the requirement that an issuer

describe its products as not “DRC conflict free” in the report it

files with the Commission and must post on its website.8 15

U.S.C. § 78m(p)(1)(A)(ii) & (E). That requirement, according

to the Association, unconstitutionally compels speech. The

8

The district court stated that the Association had limited its First

Amendment claim to product descriptions on an issuer’s “website[].”

Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 73. In this court both the

Commission and the intervenor Amnesty International understood the

Association’s claim to encompass also the not “DRC conflict free”

statement required in a company’s report to the Commission. See, e.g.,

Appellee Br. 58, 61; Intervenor Br. 31. When asked about the scope

of the claim during oral argument, counsel for the Association

clarified that the First Amendment claim also extends to labeling of

products as not conflict free in reports to the Commission. Oral Arg.

Tr. at 15:25-16:11. The Association does not have any First

Amendment objection to any other aspect of the conflict minerals

report or required disclosures. Id. at 16:11-16:25.

17

APPENDIX

district court, applying Central Hudson Gas & Electric Corp. v.

Public Service Commission, 447 U.S. 557, 564-66 (1980),

rejected the First Amendment claim. Nat’l Ass’n of Mfrs., 956

F. Supp. 2d at 73, 75-82. We review its decision de novo. Am.

Bus. Ass’n v. Rogoff, 649 F.3d 734, 737 (D.C. Cir. 2011).9

The Commission argues that rational basis review is

appropriate because the conflict free label discloses purely

factual non-ideological information. We disagree. Rational basis

review is the exception, not the rule, in First Amendment cases.

See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42

(1994). The Supreme Court has stated that rational basis review

applies to certain disclosures of “purely factual and

uncontroversial information.” Zauderer v. Office of Disciplinary

Counsel, 471 U.S. 626, 651 (1985). But as intervenor Amnesty

International forthrightly recognizes,10 we have held that

9

The concurring opinion suggests that we hold the First

Amendment portion of our opinion in abeyance and stay

implementation of the relevant part of the final rule. We do not see

why that approach is preferable, even though it might address the risk

of irreparable First Amendment harm. Issuing an opinion now

provides an opportunity for the parties in this case to participate in the

court’s en banc consideration of this important First Amendment

question. That is consistent with the court’s previous approach in

United States v. Crowder, 87 F.3d 1405, 1409 (D.C. Cir. 1996) (en

banc), cert. granted, judgment vacated, 519 U.S. 1087 (1997), on

remand 141 F.3d 1202 (D.C. Cir. 1998) (en banc), in which we

consolidated two cases presenting the same legal issue so that all

parties could participate in the en banc proceeding.

10

See Intervenor Br. 32 n.5 (“Amnesty International recognizes

that this panel is bound by R.J. Reynolds Tobacco Co. v. FDA, 696

F.3d 1205 (D.C. Cir. 2012), which circumscribed Zauderer’s rational-

basis standard.”). For its part, the Commission makes no attempt to

18

APPENDIX

Zauderer is “limited to cases in which disclosure requirements

are ‘reasonably related to the State’s interest in preventing

deception of consumers.’” R.J. Reynolds Tobacco Co. v. FDA,

696 F.3d 1205, 1213 (D.C. Cir. 2012) (quoting Zauderer, 471

U.S. at 651); see Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947,

959 n.18 (D.C. Cir. 2013). But see Am. Meat Inst. v. USDA, No.

13-5281, 2014 WL 1257959, at *4-7 (D.C. Cir. Mar. 28, 2014),

vacated and en banc rehearing ordered, Order, No. 13-5281

(D.C. Cir. Apr. 4, 2014) (en banc). No party has suggested that

the conflict minerals rule is related to preventing consumer

deception. In the district court the Commission admitted that it

was not. Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 77.

That a disclosure is factual, standing alone, does not

immunize it from scrutiny because “[t]he right against

compelled speech is not, and cannot be, restricted to ideological

messages.” Nat’l Ass’n of Mfrs., 717 F.3d at 957. Rather, “th[e]

general rule, that the speaker has the right to tailor the speech,

applies . . . equally to statements of fact the speaker would rather

avoid.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515

U.S. 557, 573-74 (1995) (citing cases). As the Supreme Court

put it in Riley v. National Federation of the Blind of North

Carolina, Inc., the cases dealing with ideological messages11

distinguish R.J. Reynolds; in fact, it does not even acknowledge the

holding of R.J. Reynolds regarding Zauderer, which the Commission

also fails to cite.

11

See, e.g., Wooley v. Maynard, 430 U.S. 705 (1977); W. Va.

State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); see also Rumsfeld

v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 61

(2006) (“Some of [the] Court’s leading First Amendment precedents

have established the principle that freedom of speech prohibits the

government from telling people what they must say.”).

19

APPENDIX

“cannot be distinguished simply because they involved

compelled statements of opinion while here we deal with

compelled statements of ‘fact.’” 487 U.S. 781, 797 (1988).

At all events, it is far from clear that the description at

issue—whether a product is “conflict free”—is factual and non-

ideological. Products and minerals do not fight conflicts. The

label “conflict free” is a metaphor that conveys moral

responsibility for the Congo war. It requires an issuer to tell

consumers that its products are ethically tainted, even if they

only indirectly finance armed groups. An issuer, including an

issuer who condemns the atrocities of the Congo war in the

strongest terms, may disagree with that assessment of its moral

responsibility. And it may convey that “message” through

“silence.” See Hurley, 515 U.S. at 573. By compelling an issuer

to confess blood on its hands, the statute interferes with that

exercise of the freedom of speech under the First Amendment.

See id.

Citing our opinion in SEC v. Wall Street Publishing

Institute, Inc., intervenor Amnesty International argues that

rational basis review applies because the final rule exercises “the

federal government’s broad powers to regulate the securities

industry.” 851 F.2d 365, 372 (D.C. Cir. 1988).12 In Wall Street

Publishing the court held that the Commission could, without

running afoul of the First Amendment, seek an injunction

requiring that a magazine disclose the consideration it received

in exchange for stock recommendations. Id. at 366.

Significantly, the court chose to apply a less exacting level of

scrutiny, even though the injunction did not fall within any well-

established exceptions to strict scrutiny. Id. at 372-73.

12

The Commission does not join this argument.

20

APPENDIX

It is not entirely clear what would result if Wall Street

Publishing did apply to this case. The opinion never states that

rational basis review governs securities regulations as such. At

one point, the opinion even suggests that the power to regulate

securities might be roughly tantamount to the government’s

more general power to regulate commercial speech. Id. at 373.

Whatever its consequences, we do not think Wall Street

Publishing applies here. The injunction at issue there regulated

“inherently misleading” speech “employed . . . to sell

securities.” Id. at 371, 373. The opinion thus concerned the same

consumer-deception rationale as did Zauderer. See id. at 374. As

explained above, consumer-deception is not an issue here, and

the “conflict free” label is not employed to sell securities.

To read Wall Street Publishing broadly would allow

Congress to easily regulate otherwise protected speech using the

guise of securities laws. Why, for example, could Congress not

require issuers to disclose the labor conditions of their factories

abroad or the political ideologies of their board members, as part

of their annual reports? Those examples, obviously repugnant to

the First Amendment, should not face relaxed review just

because Congress used the “securities” label.

Having established that rational basis review does not

apply, we do not decide whether to use strict scrutiny or the

Central Hudson test for commercial speech. That is because the

final rule does not survive even Central Hudson’s intermediate

standard.

Under Central Hudson, the government must show (1) a

substantial government interest that is; (2) directly and

materially advanced by the restriction; and (3) that the

restriction is narrowly tailored. 447 U.S. at 564-66; see R.J.

21

APPENDIX

Reynolds, 696 F.3d at 445. The narrow tailoring requirement

invalidates regulations for which “narrower restrictions on

expression would serve [the government’s] interest as well.”

Cent. Hudson, 447 U.S. at 565. Although the government need

not choose the “least restrictive means” of achieving its goals,

there must be a “reasonable” “fit” between means and ends. Bd.

of Trs. v. Fox, 492 U.S. 469, 480 (1989). The government

cannot satisfy that standard if it presents no evidence that less

restrictive means would fail. Sable Commc’ns v. FCC, 492 U.S.

115, 128-32 (1989).

The Commission has provided no such evidence here. The

Association suggests that rather than the “conflict free”

description the statute and rule require, issuers could use their

own language to describe their products, or the government

could compile its own list of products that it believes are

affiliated with the Congo war, based on information the issuers

submit to the Commission. The Commission and Amnesty

International simply assert that those proposals would be less

effective. But if issuers can determine the conflict status of their

products from due diligence, then surely the Commission can

use the same information to make the same determination. And

a centralized list compiled by the Commission in one place may

even be more convenient or trustworthy to investors and

consumers. The Commission has failed to explain why (much

less provide evidence that) the Association’s intuitive

alternatives to regulating speech would be any less effective.

The Commission maintains that the fit here is reasonable

because the rule’s impact is minimal. Specifically, the

Commission argues that issuers can explain the meaning of

“conflict free” in their own terms. But the right to explain

compelled speech is present in almost every such case and is

inadequate to cure a First Amendment violation. See Nat’l Ass’n

22

APPENDIX

of Mfrs., 717 F.3d at 958. Even if the option to explain

minimizes the First Amendment harm, it does not eliminate it

completely. Without any evidence that alternatives would be

less effective, we still cannot say that the restriction here is

narrowly tailored.13

We therefore hold that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E),

and the Commission’s final rule, 77 Fed. Reg. at 56,362-65,

violate the First Amendment to the extent the statute and rule

require regulated entities to report to the Commission and to

state on their website that any of their products have “not been

found to be ‘DRC conflict free.’”14

The judgment of the district court is therefore affirmed in

part and reversed in part and the case is remanded for further

proceedings consistent with this opinion.

So ordered.

13

Because the statute and final rule fail the third part of the

Central Hudson test, we need not decide whether they satisfy the

second part: that the speech restrictions directly and materially

advance the government’s asserted interest.

14

The requirement that an issuer use the particular descriptor “not

been found to be ‘DRC conflict free’” may arise as a result of the

Commission’s discretionary choices, and not as a result of the statute

itself. We only hold that the statute violates the First Amendment to

the extent that it imposes that description requirement. If the

description is purely a result of the Commission’s rule, then our First

Amendment holding leaves the statute itself unaffected.

APPENDIX

SRINIVASAN, Circuit Judge, concurring in part: I concur

fully in Parts I, II, and III of the court’s opinion, which sustain

the SEC’s Conflict Minerals Rule against challenges brought by

the National Association of Manufacturers under the

Administrative Procedure Act and the Securities Exchange Act.

Respectfully, I do not join Part IV of the court’s opinion, which

addresses the Association’s First Amendment claim. A question

of central significance to the resolution of that claim is pending

before the en banc court in another case. I would opt to hold in

abeyance our consideration of the First Amendment issue in this

case pending the en banc court’s decision in the other, rather

than issue an opinion that might effectively be undercut by the

en banc court in relatively short order.

The intersection between the two cases arises from the way

in which the court resolves the Association’s First Amendment

claim. An essential step in the majority’s First Amendment

analysis is that the relaxed standard for reviewing compelled

commercial-speech disclosures set forth in Zauderer v. Office of

Disciplinary Counsel, 471 U.S. 626, 651 (1985), applies only if

the disclosure requirement serves a governmental interest in

preventing consumer deception. Ante, at 18-19. That precise

question is currently pending before our en banc court in

American Meat Institute v. United States Department of

Agriculture, No. 13-5281. In that case, a panel of this court (of

which I was a member) issued an opinion upholding labeling

requirements for meat products under Zauderer’s standard,

which requires that disclosure mandates be “reasonably related”

to the government’s interests. __ F.3d __ (slip op. at 11)

(quoting Zauderer, 471 U.S. at 651). The panel relied on the

government’s interest in arming consumers with additional

information when purchasing food, rejecting the suggestion that

Zauderer review applies only to disclosure mandates aimed to

cure consumer deception. Id. at __ (slip op. at 10).

2

APPENDIX

The full court, acting on the panel’s suggestion, id. at __

(slip op. at 14 n.1), has now voted to rehear the case en banc,

with oral argument set to take place on May 19, 2014. See

Order, No. 13-5281 (D.C. Cir. Apr. 4, 2014) (en banc) (per

curiam). The en banc court will receive supplemental briefing

on the question whether review of “mandatory disclosure”

obligations can “properly proceed under Zauderer” even if they

serve interests “other than preventing deception.” Id. My good

colleagues in the majority here assume the answer to that

question is no, and their decision on the First Amendment claim

rests on that assumption. Ante, at 18-19. But if the en banc

court in American Meat decides otherwise, the First Amendment

claim in this case presumably would need to be reconsidered

afresh.

To avert that possibility, a panel in such circumstances can

elect to withhold its decision until the en banc court decides the

potentially dispositive question. See, e.g., United States v.

Johnson, No. 91-3221, 1993 U.S. App. LEXIS 36925, at *1-2

(D.C. Cir. Dec. 14, 1993) (per curiam) (non-precedential);

United States v. Gerald, 5 F.3d 563, 565 (D.C. Cir. 1993);

United States v. Dockery, 965 F.2d 1112, 1113-14 & n.1 (D.C.

Cir. 1992); Pub. Citizen v. Nat’l Highway Traffic Safety Admin.,

848 F.2d 256, 259 (D.C. Cir. 1988); see also Judicial Watch,

Inc. v. Dep’t of Energy, No. 04-5204, 2004 U.S. App. LEXIS

22661, at *2 (D.C. Cir. Oct. 8, 2004) (per curiam) (on court’s

own motion, ordering parties to show cause why appeal should

not be held in abeyance pending en banc court’s resolution of

related question). The court likewise frequently withholds a

decision in analogous situations in which a case potentially

implicates a question pending before the Supreme Court. See,

e.g., Wagner v. FEC, No. 13-5162 (D.C. Cir. Sept. 11, 2013) (en

banc) (per curiam); United States v. Epps, 707 F.3d 337, 341

(D.C. Cir. 2013); Trump Plaza Assocs. v. NLRB, 679 F.3d 822,

3

APPENDIX

826 (D.C. Cir. 2012); Belbacha v. Bush, 520 F.3d 452, 456-57

(D.C. Cir. 2008). Ordinarily, when resolution of a case before

a panel could turn on a question under consideration by the en

banc court in a separate case, the latter case would have been

pending for some time. The circumstances here are unusual in

that regard because this case was docketed shortly before, and

presented to the court essentially contemporaneously with,

American Meat. But because en banc review has now been

granted in American Meat, my own respectful preference would

be to withhold a decision on the First Amendment claim here

pending the en banc decision in that case.

To be sure, there is no certainty that the en banc decision in

American Meat will alter the panel’s resolution here. As could

always be the case when a panel addresses an issue pending

before the en banc court in a different case, the full court might

agree with the panel’s inclination—here, by concluding that

Zauderer’s “reasonably related” standard applies only to

disclosure requirements aimed to prevent consumer deception.

Moreover, even if the en banc court were to decide that

Zauderer extends more broadly, the majority suggests that the

conflict minerals disclosure requirement might fail to satisfy

another precondition to Zauderer scrutiny, i.e., that the

disclosure be factual and non-controversial. See ante, at 20. As

it stands, though, the majority’s decision on the First

Amendment challenge hinges on the premise that Zauderer

applies only to the prevention of deception—the issue now

under consideration by the en banc court.

I fully join the court’s resolution of the Association’s

remaining challenges to the SEC’s rule, however. The parties

understandably desire a final decision from this court before the

May 31, 2014, deadline for the first conflict minerals disclosure

report. See 77 Fed. Reg. 56,274, 56,305 (Sept. 12, 2012). Parts

4

APPENDIX

I, II, and III of the court’s opinion address non-First Amendment

challenges bearing no connection to the en banc proceedings in

American Meat. Those parts of the court’s opinion—which

resolve the claims to which the Association devotes its principal

attention—should issue forthwith. See, e.g., Coke Oven Envtl.

Task Force v. EPA, No. 06-1131, 2006 U.S. App. LEXIS 23499,

at *4 (D.C. Cir. Sept. 13, 2006) (per curiam) (severing one

aspect of case and holding it in abeyance pending Supreme

Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007));

United States v. Coles, No. 03-3113, 2004 U.S. App. LEXIS

25904, at *3-4 (D.C. Cir. Dec. 13, 2004) (per curiam) (affirming

judgment in part and holding remaining portion of case in

abeyance pending Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005)); Wrenn v. Shalala, No. 94-5198,

1995 U.S. App. LEXIS 8731, at *1-3 (D.C. Cir. Mar. 8, 1995)

(per curiam) (non-precedential) (affirming dismissal of certain

claims, reversing dismissal of other claims, and holding separate

claim in abeyance pending Supreme Court decision in Kimberlin

v. Quinlan, 515 U.S. 321 (1995)).

That approach would afford a resolution as to the lion’s

share of the challenges to the SEC’s rule in advance of the date

by which the parties seek a decision. It would still leave

unresolved, though, the more narrowly focused challenge under

the First Amendment to the particular requirement that

manufacturers categorize certain products as “not found to be

‘DRC conflict-free’” in a conflict minerals report. 17 C.F.R. §

249b.400, Form SD, Item 1.01(c)(2). The court, however, could

stay enforcement of that aspect of the SEC’s rule pending

disposition of the Association’s First Amendment claim.

In these unique circumstances, there would be strong

arguments supporting issuance of a stay under the governing

standards. See generally Wash. Metro. Area Transit Comm’n v.

5

APPENDIX

Holiday Tours, Inc., 559 F.2d 841, 842-43 & n.1 (D.C. Cir.

1977). With regard to the likelihood of success on the merits:

the majority concludes that the disclosure requirement fails to

satisfy the test of Central Hudson Gas & Electric Corp. v.

Public Service Commission, 447 U.S. 557 (1980); and there are,

at the least, substantial questions concerning Zauderer’s

applicability given the grant of en banc review in American

Meat and the majority’s suggestion, ante at 20, that the

disclosure requirement may fail to qualify for Zauderer review

regardless. With regard to irreparable harm and the balance of

equities: “loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury,”

Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality); and any

adverse consequences for the SEC and the public would be

limited because a stay would leave the bulk of the SEC’s rule

(including the disclosure obligations) in place, affecting only the

requirement to use a particular phrase. The court perhaps could

enter a stay on its own motion, see Fed. R. App. P. 2; Deering

Milliken, Inc. v. FTC, 647 F.2d 1124, 1129 (D.C. Cir. 1978)

(“balance of the equities” favors a stay “so much so that we

should act sua sponte”), or at least could invite submissions

from the parties on the desirability of a stay or order the SEC to

show cause why one should not be granted.

It bears noting that there would be no evident need to stay

any part of the statute, as opposed to the SEC’s rule. The

Exchange Act requires covered manufacturers to list products

qualifying as “not DRC conflict free” under the statutory

definition. 15 U.S.C. § 78m(p)(1)(A)(ii); see id. §

78m(p)(1)(D). The Act, however, contains no mandate to use

any magic words when categorizing those products. Congress

elected to use the descriptor, “not DRC conflict free,” in the Act,

id. § 78m(p)(1)(A)(ii), but Congress imposed no requirement for

manufacturers to use that (or any) particular phrase when

6

APPENDIX

describing their products. The latter obligation comes from the

SEC’s rule, not the statute. The rule, moreover, compels use of

the phrase, “not been found to be ‘DRC conflict free’”—rather

than “not DRC conflict free”—an adjustment viewed by the

agency to ameliorate any First Amendment objections by

allowing for a more “accurate disclosure.” 77 Fed. Reg. at

56,323. If the court were to withhold a decision on the

Association’s First Amendment claim pending the en banc

court’s decision in American Meat, but were to grant temporary

relief to the Association in the interim, any stay order

presumably would run against the SEC’s rule (not the statute)

and would correspond to the particular disclosure compelled by

that rule.