Corporations Hiding Dirty Secrets Behind Free Speech Claims May Soon Have To Admit Bloody Hands

A series of conflicting rulings by one of the nation’s most right-wing federal courts is raising the unexpected possibility that a U.S. corporation with “blood on its hands” will not be able to keep hiding that fact from American consumers.

The venue is the U.S. Court of Appeals in Washington, D.C., which in recent years has some of the most pro-corporate, anti-public interest rulings in America. It struck down new labeling on cigarette boxes, saying using images was too graphic and impinged on corporate speech rights. It struck down a new labor regulation allowing “know your rights” posters in in employee break rooms.

Last April, a three-judge panel on the court struck down a new Securities and Exchange Commission rule requiring any publicly traded company to certify their products are “conflict-free” and disclose the source of the raw materials—such as mineral mines in Africa’s war-torn Congo.  

“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,” it wrote, concluding that Congress couldn’t require this disclosure without violating commercial speech rights.

That ruling was considered another right-wing victory until July, when another ruling came from the D.C. Circuit Court, this time from a review by all of its sitting judges—which is a higher-ranking decision than by a three-judge panel. That ruling surprisingly upheld a new law requiring labels on fresh meat to say what country the meat is from. At the heart of it was a legal argument saying that the First Amendment could not be endlessly used by corporations to keep the public in the dark.  

Surprisingly, the D.C. Circuit has agreed to rehear the First Amendment arguments in the conflict minerals case.

“What we saw from the D.C. Circuit during the summer was a bit of putting the brakes on a disturbing trend which expanded the use of the First Amendment to stop disclosure laws,” said Ronald Fein, an attorney with Free Speech for People who jointly filed a legal brief with Global Witness, an international social justice group, to spur the D.C. Circuit Court to reconsider the conflict minerals ruling.

The heart of this case concerns whether unethical corporate behaviors can be kept from the public and consumers, Fein said.

“This is information that corporations have asymetrical access to,” he said. “They have a much greater ability to find out if their mines in the Congo are controlled by warlords than do the public and their investors. This is information that only they can provide. The real implication of their claims is they don’t want the public to have this information.”

“Industry groups persist in an aggressive campaign against this law, misrepresenting it as a 'scarlet letter' which allegedly breaches corporations’ rights under the First Amendment of the U.S. Constitution," said Global Witness' Carly Oboth. "But the industry’s argument would threaten many well-established transparency laws that help ensure markets operate fairly and efficiently, such as requiring companies to warn consumers about safety or health hazards of individual products, such as cars or tobacco."

"The case comes down to whether corporations will succeed in convincing the court that they are people whose free speech rights are being violated," she said. "If they succeed, let’s be very clear about the consequences: this posture would undermine a law designed to alleviate the very real suffering of actual people living in central Africa.”