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On March 21, 2022, the U.S. Securities and Exchange Commission (SEC) released its much-anticipated proposed rule titled "The Enhancement and Standardization of Climate-Related Disclosures for Investors." The proposed enhanced disclosure requirements draw from groups dedicated to developing effective climate-related disclosures, including the Task Force on Climate-Related Financial Disclosures and the Greenhouse Gas Protocol. SEC Chair Gary Gensler believes the enhanced disclosure requirements will provide consistent, comparable, and reliable climate-risk information to investors. Environmentally-focused investors appear to agree that the rule, if finalized, will provide much needed guidance, but not everyone is convinced.

Ready or not, the SEC's proposed rule may well be finalized this year and, if so, would begin applying to certain filings as soon as FY 2023. In this alert, we answer some commonly asked questions regarding disclosure requirements the proposed rule would add, the SEC's authority to require climate disclosures, and the potential impact of the disclosure requirements.

Charged with protecting investors and maintaining investor confidence, the SEC's existing regulatory framework requires that public companies, broker-dealers, and certain company insiders disclose "material" information, or information that a "reasonable shareholder" would likely consider important.1

In 2010, the SEC issued guidance on pertinent non-financial disclosure rules that required some disclosures related to climate change, including the disclosure of material effects of compliance with federal, state, and local provisions regulating the discharge of materials into the environment and environmental litigation. The SEC noted then that, depending on the facts and circumstances of a particular registrant, certain items may require disclosures regarding the impact of climate change.

The newly proposed rule clarifies that a registrant would be required to disclose the following:

Further, if the registrant has publicly set climate-related targets or goals, the registrant must disclose information about:

When responding to any of the proposed rules' provisions concerning governance, strategy, and risk management, a registrant may also disclose information concerning any identified climate-related opportunities. A registrant that qualifies as a "large accelerated filer" or "accelerated filer" will also be required to obtain a third-party attestation report on its Scope 1 and 2 emissions disclosures.

Major legislation that provides the framework for the SEC's oversight of the securities markets includes the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Jumpstart Our Business Startups Act. SEC Chair Gensler maintains that the proposed rule lies within the scope of the SEC's authority to regulate the information material to investors, while critics of the SEC's proposed rule, including SEC Commissioner Hester Peirce, argue that the rule exceeds the authority of SEC. Two of the most likely legal challenges to the proposed rule pertain to (a) the materiality standard and (b) the First Amendment.

Regarding materiality, in TSC Industries v. Northway2, the Supreme Court explained that, under the Securities Exchange Act of 1934, information is only material to investors, and therefore requiring disclosure, if there is a "substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information available." Some law professors and scholars have noted that, while climate-related disclosures may be material to some investors, the disclosures may be completely irrelevant to others. This may lead companies to challenge the proposed rule as requiring immaterial disclosures.

As for the First Amendment, the Supreme Court has closely scrutinized disclosure requirements in several cases and has explained that there must be a substantial relationship between the government interest and the information required to be disclosed such that the strength of the government interest reflects the seriousness of the burden on First Amendment rights.3 And so, certain law professors, among other critics of the proposed rule, have suggested that the government interest does not reflect the burden on First Amendment rights since the proposal is not limited to materials that interest all investors. It is therefore likely the SEC will face challenges on the basis of the registrants' First Amendment rights.

If adopted as proposed, public companies will have to present much more detailed disclosures regarding climate-related matters in their SEC filings, including in their financial statements. Many larger public companies have already been disclosing these matters, albeit perhaps not at the level of detail contemplated in the SEC's proposed rule. These larger companies should further refine their reporting processes and controls so that they are in a position to effectively compile and present the climate-related information in a manner subject to attestation by third parties. Smaller companies should also begin assessing their reporting processes as they relate to climate-related matters so the companies will be prepared to comply with the proposed new disclosure requirements. Form 10-K and proxy season is already a busy time for companies, and it looks like aggregating detailed, climate-related information could now be a substantial part of that busy season.

As far as timing is concerned, Large Accelerated Filers will have until FY 2023 (for their Form 10-K filed in 2024) to comply with all proposed disclosures, including Scope 1 and Scope 2 GHG emissions metrics and until FY 2024 (for their Form 10-K filed in 2025) to comply with Scope 3 metrics. Accelerated Filers and Non-Accelerated Filers will have until FY 2024 (for their Form 10-K filed in 2025) to comply with all proposed disclosures including Scope 1 and Scope 2 GHG emission metrics and until FY 2025 (for their Form 10-K filed in 2026) to comply with Scope 3 metrics. Smaller Reporting Companies will have until FY 2025 (for their Form 10-K filed in 2026) to comply with all proposed disclosures including Scope 1 and Scope 2 GHG emission metrics and are exempt from complying with Scope 3 requirements. There is also a transition period for the attestation requirements. Large Accelerated Filers and Accelerated Filers will have to provide third-party attestation at a limited assurance level for fiscal years 2 and 3 after the Scope 1 and Scope 2 GHG emissions compliance date and at a reasonable assurance level for fiscal years 4 and beyond after the Scope 1 and Scope 2 GHG emissions compliance date.

1 TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976).

2 426 U.S. at 448.

3 See, e.g., Natl Assn of Mfrs. v. Taylor, 582 F.3d 1, 9 (D.C. Cir. 2009).

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FAQ: The SEC's Proposed Rule on the Enhancement and Standardization of Climate Related-Disclosures - JD Supra

JACKSON, Wyo. (AP) Grand Teton National Park is reversing its plan to require portrait photographers to obtain a permit to take wedding pictures during the upcoming tourist season after hearing complaints from photographers and First Amendment attorneys.

Earlier this year, the park announced it would require wedding photographers who take pictures at six designated wedding sites to obtain permits and remit at least 3% of their earnings to the park. Smaller weddings and elopements not held at those designated spots would not be allowed a paid photographer.

Media, nature and professional photographers complained, noting that federal law says the park service cannot require a permit for still photography if it happens where the public is generally allowed.

The park policy is essentially reverting to the way it was, Grand Teton Chief of Staff Jeremy Barnum told the Jackson Hole News & Guide.

Park regulations still limit wedding parties of 12 or more people to the six designated sites. The park will issue up to 330 wedding permits for those areas. Smaller parties can get permits for backcountry areas. All parties can have paid wedding photographers.

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Grand Teton reverses plan to require photographer permits - East Idaho News

The Supreme Court has struck down laws that have restricted offensive speech, such as the wearing of swastikas in Village of Skokie v. National Socialist Party of America. But in Virginia v. Black, the Supreme Court declined to rule that cross-burning was protected expressive speech under the First Amendment when such an activity was intended to intimidate, reasoning that sometimes it can constitute a "true threat." (Photo of Ku Klux Klansmen and women at a cross lighting in 2005 via Wikimedia Commons, CC BY-SA 3.0)

The term hate speech is generally agreed to mean abusive language specifically attacking a person or persons because of their race, color, religion, ethnic group, gender, or sexual orientation. Although the First Amendment still protects much hate speech, there has been substantial debate on the subject in the past two decades among lawmakers, jurists, and legal scholars.

The scholarly debate concerning the regulation of hate speech flared in the late 1980s, primarily focusing on campus speech codes, pitting those who view regulation of hate speech as a necessary step toward social equality against those who see hate speech regulations as abridgements of the fundamental right of free speech.

The traditional liberal position is that speech must be valued as one of the most important elements of a democratic society. Traditional scholars see speech as a fundamental tool for self-realization and social growth and believe that the remedy for troublesome speech is more speech, not more government regulation of speech. For example, liberal theorist Nadine Strossen, relying to some degree on John Stuart Mills connection between speech and the search for truth, argues that restricting hate speech will mask hatred among groups rather than dissipate it.

Proponents of hate speech regulation usually do so from the perspective of critical race theory, believing that legal decisions are based on preserving the interests of the powerful, and see no value in protecting bias-motivated speech against certain already oppressed groups. They question the necessity and logic of protecting speech that not only has no social value but is also socially and psychologically damaging to minority groups. These proponents of the regulation of hate speech suggest a new balance between free speech and social equality.

For example, Mari Matsuda, a law professor at Georgetown University, has advocated creating a legal doctrine defining proscribable hate speech from a basis in cases where the message is one of racial inferiority, the message is directed against a historically oppressed group, and the message tends to persecute or is otherwise hateful and degrading.

The Illinois Supreme Court reviewed the question of restricting a Nazi rally in Village of Skokie v. National Socialist Party of America (1978). The court, relying heavily on a U.S. Supreme Court case, Cohen v. California (1971), raised the slippery slope argument, contending that restricting the wearing of a swastika would lead to an endless number ofrestrictions on all sorts of offensive speech. Adhering to the content neutrality principle, the court ruled that the government could not base rules on the feelings of the most squeamish among us and that the wearing of swastikas was a matter of taste and style.

In R.A.V. v. St. Paul (1992) the Supreme Court appeared to close the door on hate speech regulations. The case involved a city ordinance in St. Paul, Minnesota, prohibiting bias-motivated disorderly conduct against others on the basis of race, color, creed, religion, or gender. The Court struck down the ordinance, finding it to be unconstitutional on its face because it was viewpoint discriminatory.

The Court reviewed whether hate speech as defined in the ordinance fit into the fighting words category. This category, first established in Chaplinsky v. New Hampshire (1942), was defined as such words, as ordinary men know, are likely to cause a fight. The Court in R.A.V. found that the ordinance had removed specific hateful speech from the category of fighting words because, by specifying the exact types of speech to be prohibited, the restriction was no longer content neutral.

More than a decade later, the Supreme Court again ruled on a hate speech case. Virginia v. Black (2003) concerned the constitutionality of a Virginia statute that made it unlawful to burn a cross with the intent of intimidating any person or group of persons. Many scholars have argued that the Courts opinion in Black is completely opposite from its ruling in R.A.V.

Relying on the history of the use of cross burnings to intimidate African Americans, the plurality found that R.A.V. did not mean the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. The Court did accept the idea that some individuals might burn crosses for reasons other than intimidation.

Current case law and research concerning hate speech has shifted focus toward hate speech on the Internet. The Internet brings with it a myriad of new problems for the First Amendment, including how to determine what level of scrutiny to apply and how to react to existing restrictions on hate speech by much of the international community.

This article was originally published in 2009 and updated in 2017. Chris Demaske is an associate professor of communication at the University of Washington Tacoma. Her research explores issues of power associated with free speech and free press and has covered topics including hate speech, academic freedom, and Internet pornography.

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Hate Speech | The First Amendment Encyclopedia

As we wrap up Sunshine Week, an annual recognition of the importance of open government, I cannot help but reflect on our imperfect union and that the free flow of fact-based news continues to hit roadblocks in this age of misdirection and disinformation. Fake news, if you will.

But whatever obstacles we encounter in the United States serve as warnings to what we could face if they are left unchecked. U.S. press operations have pulled out of Russia after journalists covering the invasion of Ukraine were threatened, leaving only government-regulated propaganda.

The former American Society of News Editors (now the News Leaders Association) launched Sunshine Week in 2005 as a national initiative to promote a dialogue about the importance of open government and freedom of information. The week-long celebration is held every March to coincide with the March 16 birthday of James Madison, the father of the U.S. Constitution and a key advocate of the Bill of Rights.

The First Amendment provides us with great protection from government interference for what we say and write, particularly on political issues or matters of public interest. We should remember that the nations founders created those protections to allow for what the U.S. Supreme Court has called robust and vigorous debate. In 2002, Justice Anthony Kennedy wrote, The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

These days, as we witness what it means to be silenced and without recourse, we should think about those wordsand why the founders and the nation ratified the First Amendments five freedoms during a period of great division and debate not unlike that of today. Unfettered flow of information and access to government is for each of us, not just members of the press, which led to a timely discussion this week on that very topic.

Last October, Indiana Attorney General Todd Rokita banned Abdul-Hakim Shabazz from covering his press conferences, saying he wasnt an actual journalist. The ACLU in February filed a lawsuit claiming Rokitas office violated Shabazzs First Amendment rights. Rokita later denied Shabazzs open-records request asking for an explanation from Rokita as to why he was banned. Just this month, Rokita filed a motion to dismiss the lawsuit.

Shabazz is editor and publisher of IndyPolitics.org, a well-established digital news source for politics in Indiana. He was joined in a panel discussion at Ball State University this week by The Indianapolis Stars Statehouse reporter, Kaitlin Lange, as well as Steve Key, executive director and general counsel of the Hoosier State Press Association, and Amelia Dieter McClure, HSPAs incoming executive director. The event, sponsored by the College of Communication, Information and Media, featured the question: Who is a journalist and why it matters.

Our rights, including the right to free speech, dont exist if theyre not defended. And defending basic freedomseven when a group besides our own is in the crosshairsbenefits everyone by making sure the protections of our basic rights remain strong.

__________

Metzger is an associate lecturer at the School of Journalism and Strategic Communication, and former president and publisher of The Star Press and executive editor for digital at The Indianapolis Star.

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Juli Metzger: First Amendment is about more than journalism - Indianapolis Business Journal

In May 2021, I published a list of Answers to 12 Bad Anti-Free Speech Arguments with our friends over at Areo. The great Nadine Strossen former president of the ACLU from 1991 to 2008, and one of the foremost experts on freedom of speech alive today saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. My answers, when applicable, appear with hers. Because the remaining arguments well be addressing are more nuanced, weve decided to drop the word bad from the title going forward.

Earlier in the series:

Assertion: Free speech rests on the false premise that the marketplace of ideas will lead to truth.

Greg Lukianoff: A very similar argument recently came up in a First Amendment News contribution by Emerson Sykes, a free speech lawyer at the ACLU who does very important First Amendment work. Sykes wrote:

I would be remiss if I didnt take this opportunity to point out a few old arguments for free speech that I think have outlasted their utility that the cure for bad speech is more speech, and the related metaphor of the marketplace of ideas. While counter-speech is undoubtedly powerful in many instances, inherent in both of these arguments is the idea that unfettered speech will eventually and inevitably lead to truth and justice. If we just let every idea run its course, the thinking goes, the good ones will win in the end.

But there is nothing inevitable about truth or justice. And all speech is not equal. Just as the marketplace of goods is full of distortions and structural power imbalances, it is not at all obvious that the marketplace of ideas requires a laisse-faire approach. The question is not whether good speech always wins in the end (a quick perusal of Twitter will indicate that it emphatically does not), the question is what rights do we all have to our ideas and communications, and who gets the power to decide what is true, what is acceptable speech, and what is not.

With much respect to Sykes, whom I admire, I believe this is a strawman. I have not seen any serious free speech advocate arguing unfettered speech will eventually and inevitably lead to truth and justice. Free speech is not all that you need to find the truth but surely truth stands zero chance if no one can utter it. Freedom of speech is necessary but not sufficient to the discovery of truth.

Simply, you cannot understand the world as it is if you dont know what people think and why.

Now, a brief but important digression on how truth is defined in free speech classics like Miltons 1644 Areopagitica and Mills 1859 On Liberty, and how these conceptions of truth relate to the terms usage today: In older treatises on freedom of speech, as well as in some more recent writings, truth is used not to refer to a single objective reality, but to an iterative ongoing process. To paraphrase Jefferson, truth can mean not error or even simply better arguments. It refers to an approach toward a better approximation of reality, not an arrival at complete understanding. This, unfortunately, needs to be clarified, because one of the attacks on freedom of speech is premised on a static and absolute definition of truth. Of course, due to human bias, objective truth is not perfectly knowable: Therefore, the argument goes, free speech is of no value in attaining truth. But once you reject the false binary at the heart of the often fruitless debate about whether or not objective truth exists, and instead focus on the fact that open discussions where all opinions are aired are more likely than restricted discussions to lead away from error and toward better arguments and ideas, the value of free speech becomes self-evident.

Now onto the marketplace of ideas metaphor: Like Sykes, I have been highly critical of the marketplace of ideas metaphor, and believe it is incomplete. In my piece, Coronavirus and the failure of the Marketplace of Ideas, I address several shortcomings with the marketplace of ideas metaphor, namely that the concept doesnt provide much space for the importance of artistic freedom (as art doesnt neatly fit into good, bad, true, or false boxes), and does not explain how certain bad ideas like the flat Earth theory seem to have immortal staying power, even in the face of overwhelming evidence. I instead proposed the lab in the looking glass metaphor in short, that the primary value of free speech is that it gives you the chance to understand the world as it really is. The shift in emphasis may seem subtle, but its important. Too often, we focus on evaluating whether or not an individuals factual assertions are true, yet miss a really important truth the fact of the existence of that individuals perspective. Simply, you cannot understand the world as it is if you dont know what people think and why. Not only is this true on a civic and democratic level, but also on a historical, psychological, and scientific level. Free speech is essential because it is always important to know what people really think and why, especially if their views are potentially pernicious.

So because the marketplace of ideas concept is flawed and incomplete, should we abandon it? No, because the metaphor does vividly convey one of the important justifications for free speech: Good and bad ideas do collide when debate is unrestricted, and illustrate what I call Mills Trident in short, the observation made by John Stuart Mill in On Liberty that, in any argument, there are only three possibilities (being wrong, being partially wrong, or being wholly correct), and every possibility is improved or strengthened by freedom of speech and inquiry.

The marketplace analogy makes Mills Trident quite easy to understand. If the marketplace is free, bad ideas can be tested against good ideas, and good ones can be sharpened by collision with bad ones. If a good idea is restricted, the corresponding bad idea will never be tested, and people will lose reason to reject it. Moreover, even if only bad ideas are restricted, our understanding of the good ideas will be weakened.

One important note on the marketplace of ideas is that it is a very appropriate metaphor and model for higher education, the context in which I have spent most of my career. Indeed, scholarship at its best is supposed to be a process of arguing, testing, researching, re-arguing, retesting all to via subtraction (a.k.a. via negativa) eliminate a larger and larger number of false assertions. While in everyday life among many people matters of preference and emotional state may be primary topics of discussion, the project of higher education is to help us understand what ideas may be false by aiming toward a better approximation of the truth, even if we never arrive there.

We still need people who are both free and willing to speak the truth.

Both my lab in the looking glass metaphor and the proper understanding of the marketplace of ideas metaphor directly imply that, again, free speech is necessary, but not sufficient to find truth. By the logic of both metaphors and in real life we still need people who are both free and willing to speak the truth.

Lastly, as for the contention that the cure for bad speech is more speech has outlived its utility, its hard to imagine what could adequately replace more speech as a remedy. Historically, most cures for speech have involved violence, the coercive power of the state, or the illiberal will of the mob or of conformist institutions, from witch burnings to the more-than-550 scholars on campuses throughout the country who have been targeted for punishment just since 2015. Silence is one way to respond to bad speech as it is a means of exercising ones right not to speak. However, silence allows bad ideas to spread without being challenged. So, while free speech may not always cure bad speech, more speech is still the best available option for addressing it.

Nadine Strossen: This argument has two major flaws. First, the truth-seeking rationale never has depended on the clearly meritless view that good ideas will necessarily dominate, and bad ideas will necessarily evaporate. Rather, that rationale has depended on the demonstrably valid view that we can better approach this ideal result through a vigorous exchange of ideas among members of the public rather than any top-down control. Second, even assuming, hypothetically, that the truth-seeking rationale were unpersuasive, robust free speech protection would still be warranted on the basis of one or more of the additional, independently sufficient rationales that underpin it.

The truth-seeking rationale rightly constitutes one important justification albeit only one among several for our modern speech-protective standards. Although this rationale dates back to much earlier free speech philosophers, it was first encapsulated in the memorable marketplace metaphor in a landmark 1919 dissent by U.S. Supreme Court Justice Oliver Wendell Holmes. That metaphor and, more importantly, the truth-seeking rationale it summarized have since been embedded in countless Supreme Court majority opinions. Holmes himself never used the precise shorthand phrase that is routinely invoked to purportedly paraphrase his analysis: the marketplace of ideas. Rather, consistent with his skeptical philosophical outlook, Holmes hypothesized that the free exchange of ideas might be a better alternative than persecution for the expression of opinions, explaining (emphasis added):

[W]hen men have realized that time has upset many fighting faiths, they may come to believe. . . that the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market.

As the italicized words indicate, Holmes argument was far from an outright prediction that free speech would inevitably lead to truth. Rather, he explained, the theory of our Constitution is that free speech is better suited for truth-seeking than censorship, but he acknowledged that this approach is an experiment, as all life is an experiment, as it is necessarily based upon imperfect knowledge. Nonetheless, he concluded that [w]hile that experiment is part of our system, . . . we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. In short, a rigorous search for truth demands that all ideas must be subject to debate and discussion through robust free speech including that very concept itself.

Arigorous search for truth demands that all ideas must be subject to debate and discussion through robust free speech including that very concept itself.

Evidence accumulated through our ongoing First Amendment experiment continues to reaffirm that free speech is a less imperfect vehicle for pursuing truth than is the censorial alternative. For example, shortly before I wrote this piece, scientific evidence came to light supporting a previously discredited theory that COVID had originated from a leak in a laboratory in Wuhan, China. Government officials and experts had condemned this theory as fake news and even hate speech since the pandemics outbreak in early 2020, and it had been suppressed in major traditional and social media outlets. Yet, in the spring of 2021 the theory was rehabilitated as at least warranting serious consideration. Despite the exclusion of this theory from key segments of the marketplace of ideas, that overall marketplace was still functioning. Had that not been the case, we would have been denied critically important ongoing examinations, with their potentially enormous impact on public health and national security.

In 1984, Professor Melville Nimmer well captured the core skeptical, relativistic notion underlying the truth-seeking rationale for free speech. Quoting Holmes marketplace metaphor, he asked, If acceptance of an idea in the competition of the market is not the best test of its truth, what is the alternative? Logically, as he concluded, the answer could only be acceptance of an idea by some individual or group narrower than that of the public at large. Are We the People, who wield sovereign power in our democratic republic, willing to entrust any individual or subgroup with the incalculable power of determining which ideas are fit for our consumption and discussion? Are we willing to entrust that power to any government official or body?

In addition to the persuasive truth-seeking rationale for strongly protecting free speech, there are multiple other important rationales, each of which provides an independent justification for such protection. These include the essential roles of free speech in democratic self-governance, facilitating individual autonomy, promoting tolerance, and furthering all other human rights. For these reasons, freedom of speech has been strongly protected not only in the U.S. Constitution, but also in its counterparts in countries around the world, as well as in major international and regional human rights treaties.

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Does free speech 'inevitably' lead towards truth? Is the 'Marketplace of Ideas' a broken metaphor? Part 13 of answers to arguments against free speech...