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.