No. 24-1522 and all consolidated cases: Nos. 24-1624, 24-1626,
24-1627, 24-1628, 24-1631, 24-1634, 24-1685, and 24-2173
IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUITState of Iowa, et al.,Petitioners,v.
United States Securities and Exchange Commission,
Respondent,
District of Columbia, et al.,Intervenors.

Petition for Review from an Order of the Securities and Exchange Commission
BRIEF OF AMICI CURIAE FIRST AMENDMENT LEGAL SCHOLARS, IN
SUPPORT OF RESPONDENT AND DENYING THE PETITIONS FORREVIEW
Ramya Krishnan
Stephanie Krent
Alex Abdo
Knight First Amendment Institute atColumbia University
475 Riverside Drive, Suite 302
New York, NY 10115(646) 745-8500
ramya.krishnan@knightcolumbia.org
Counsel for Amici Curiae

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Table of Contents
Table of Authorities .................................................................................................. ii
Interest of Amici Curiae ........................................................................................... 1
Introduction............................................................................................................... 1
I.

Securities disclosure requirements that seek to inform and protect
investors do not ordinarily raise First Amendment concerns. ................... 4

II.

The Climate Disclosure Rule falls within the tradition of securities
disclosure requirements that do not raise First Amendment
concerns. .................................................................................................... 9III.

At most, the Rule should be evaluated under Zauderer’s lenient
standard of review. .................................................................................. 12IV.

The Rule satisfies Zauderer review. ....................................................... 19A.

The Rule is reasonably related to the Commission’s interestin protecting investors and markets. ............................................. 19

B.

The Rule does not unduly burden speech. .................................... 24

Conclusion .............................................................................................................. 26
Certificate of Compliance ....................................................................................... 28
Certificate of Service .............................................................................................. 29
Appendix: List of Amici Curiae ............................................................................. 30

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Table of Authorities
Cases
1-800 Pain Referral Serv., LLC v. Otto, 744 F.3d 1045 (8th Cir. 2014) ................ 26
Am. Hosp. Ass’n v. Azar, 983 F.3d 528 (D.C. Cir. 2020) ................................ passim
Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) ............ passim
Bangor & A. R. Co. v. Interstate Com. Comm’n, 574 F.2d 1096 (1stCir. 1978) ............................................................................................................. 7Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447
U.S. 557 (1980) ........................................................................................... 16, 26
Chamber of Com. v. SEC, 85 F.4th 760 (5th Cir. 2023) .................................. passim
City of Austin v. Reagan Nat’l Advertising of Austin, LLC, 596 U.S.
61 (2022).............................................................................................................. 8
CTIA – The Wireless Ass’n v. City of Berkeley, 928 F.3d 832 (9th Cir.
2019) ........................................................................................................... passim
Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985) ..................... 7
Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997) ............................ 6
Md. Shall Issue, Inc. v. Anne Arundel Cnty., 91 F.4th 238 (4th Cir.
2024) .................................................................................................................. 26
Milavetz, Gallop & Milavetz, P.A. v. U.S., 559 U.S. 229 (2010) ........................... 15
Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024) .................................... 13, 16, 24
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ...................................... 6
Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518 (D.C. Cir. 2015) ................ 16, 17, 23, 24
Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104 (2d Cir. 2001) ....................... 14, 21
Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755 (2018) ..... 6, 13, 17, 23
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Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) ............................................ 7
Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) ................ 13
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ................................................ 8
R J Reynolds Tobacco Co. v. FDA, 96 F.4th 863 (5th Cir. 2024) .............. 15, 18, 20
SEC v. Cap. Gains Rsch. Bureau, 375 U.S. 180 (1963) ........................................... 6
SEC v. Wall St. Publ’g Inst., 851 F.2d 365 (D.C. Cir. 1988) ............................... 6, 7
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ...................................................... 6
United States v. O’Brien, 391 U.S. 367 (1968) ........................................................ 6
United States v. Wenger, 427 F.3d 840 (10th Cir. 2005)............................ 19, 21, 22
Vidal v. Elster, 602 U.S. 286 (2024)..................................................................... 8, 9
Zauderer v. Off. of Disciplinary Couns. of the Sup. Ct. of Ohio, 471
U.S. 626 (1985) .......................................................................................... passim
Statutes
Securities Act of 1933, 15 U.S.C. §§ 77a–77mm ..................................................... 5
Securities Exchange Act of 1934, 15 U.S.C. §§ 78a–78rr ....................................... 5
Rules
Asset-Backed Securities Disclosure and Registration, 79 Fed. Reg.
57,184 (Sept. 24, 2014) ....................................................................................... 9
The Enhancement and Standardization of Climate-Related Disclosuresfor Investors, 89 Fed. Reg. 21,668 (Mar. 28, 2024) (to be codified
at 17 C.F.R. pts. 210, 229, 230, 232, 239, and 249) ................................... passim
Other Authorities
Cynthia A. Williams, The SEC and Corporate Social Transparency,
112 Harv. L. Rev. 1197 (1999) ............................................................................ 5iii
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Dorothy Virginia Kibler, Commercial Speech and Disciplinary Rules
Preventing Attorney Advertising and Solicitation: Consumer Loseswith the Zauderer Decision, 65 N.C. L. Rev. 170 (1986) ................................. 18
Frederick Schauer, The Boundaries of the First Amendment: A
Preliminary Exploration of Constitutional Salience, 117 Harv. L.
Rev. 1765 (2004) ................................................................................................. 8
H.R. Rep. No. 73-1383 (1934) ................................................................................. 6
Helen Norton, What Twenty-First Century Free Speech Law Meansfor Securities Regulation, 99 Notre Dame L. Rev. 97 (2023) ..................... 4, 8, 9
NetChoice Br., NetChoice, LLC v. Paxton, 144 S. Ct. 2383 (2024)(No. 22-555), 2023 WL 8437869 ...................................................................... 13
NetChoice Reply Br., Moody v. NetChoice, LLC, 144 S. Ct. 2383
(2024) (No. 22-277), 2024 WL 693684 ............................................................ 13
Remarks of Chair Jay Clayton, Modernizing the Framework for
Business, Legal Proceedings and Risk Factor Disclosures (Aug.
26, 2020), https://perma.cc/R3DF-MJXF .......................................................... 10
S. Rep. No. 73-47 (1933) .......................................................................................... 5
S. Rep. No. 73-792 (1934) ........................................................................................ 5iv
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Interest of Amici Curiae1
Amici are a group of legal scholars at leading universities who have dedicatedsignificant attention to the study of the First Amendment. They have an interest inpromoting an interpretation of the First Amendment that is consistent with the values
and purposes the First Amendment is meant to serve. Amici’s names andprofessional affiliations are set forth in an appendix following the conclusion of thisbrief.
Introduction
On March 6, 2024, the U.S. Securities and Exchange Commission adopted a
new rule requiring public companies to include certain climate-related disclosuresin their registration statements and periodic reports. The Enhancement andStandardization of Climate-Related Disclosures for Investors, 89 Fed. Reg. 21,668(Mar. 28, 2024) (to be codified at 17 C.F.R. pts. 210, 229, 230, 232, 239, and 249)
(the “Climate Disclosure Rule” or “Rule”). Behind the Rule is a recognition thatclimate-related events and conditions may create financial risk for registrants, andthat existing disclosures do not adequately protect investors. The Rule seeks to

1

No counsel for a party authored this brief in whole or in part. No party or party’s
counsel contributed money that was intended to fund preparing or submitting thebrief. No person other than amici curiae, its members, or its counsel contributed
money that was intended to fund preparing or submitting the brief. All parties haveconsented to the filing of this brief.
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provide investors with more complete and reliable information about the climaterelated risks that registrants face, and how registrants are measuring and responding
to them.
Securities regulations have long required disclosures in this vein that inform
investors’ investment and voting decisions. Disclosures of this kind reduce
information asymmetries—both among investors and between investors andregistrants—allowing all potential investors to better assess and price risk. This, inturn, enables markets to allocate capital more efficiently and productively.
Disclosure mandates that protect investors and markets in this way generally do notraise First Amendment concerns because they regulate the exchange of information
about securities only incidentally, as part of a broader regulatory scheme aimed atsecurities dealing. These mandates have not historically drawn First Amendment
scrutiny even though they are typically and often necessarily content- or speakerbased. Such distinctions reflect the value of investment-relevant information toinvestors—not the suppression of disfavored ideas.
The Climate Disclosure Rule falls within this longstanding tradition. The Rulerequires registrants to disclose information about the material climate-related risks
they face, the impacts of those risks, and how registrants are managing them. In
addition, to facilitate investors’ assessment of particular types of risk, the Rulerequires larger registrants to disclose how much greenhouse gas (GHG) they emit

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through their operations and energy use, when those emissions are material to theirfinancial performance or position. It also compels registrants to disclose the financial
effects of severe weather events and other natural conditions in a footnote to theiraudited financial statements. As the administrative record documents, many
investors want this information because it bears upon the value of the securities inquestion, but the information that companies currently provide is inconsistent andoften difficult for investors to find or compare across companies. By requiring andstandardizing these disclosures, the Rule reduces informational asymmetry andmispricing in the market, thereby promoting market efficiency and stability.
If the Rule triggers First Amendment scrutiny at all, it should be evaluatedunder the framework that the Supreme Court established in Zauderer v. Office ofDisciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985). Under
Zauderer and its progeny, laws that compel the disclosure of “purely factual anduncontroversial information” about a commercial good or service are evaluated lessstringently than laws that compel other forms of speech. Zauderer, 471 U.S. at 651.
This is because disclosures of this kind promote the free flow of accurate information
to the public about goods and services, furthering the Court’s justification forextending the First Amendment protection to commercial speech in the first place.
Id. The Rule’s disclosures satisfy the predicates for Zauderer review: they requireregistrants to disclose factually accurate information about the securities that they3
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offer to the investing public—not to take a moral or ideological stand on climatechange or make some admission of moral culpability.
The Rule satisfies Zauderer scrutiny because it is “reasonably related to theState’s interest” and does not “unduly burden[]” speech. Id. The mandated
disclosures directly advance the Commission’s longstanding mission of protecting
investors and markets by providing investors with information they need to makeinformed investment and voting decisions. And because registrants otherwise
remain free to speak or opine about climate-related issues in any way they wish, thedisclosures do not chill registrants’ speech. The Rule is therefore not unduly
burdensome.
I.

Securities disclosure requirements that seek to inform and protect
investors do not ordinarily raise First Amendment concerns.
For as long as securities trading has been regulated, disclosure requirements

have been an integral part of the nation’s regulatory scheme. Well before the passageof the first federal securities laws, states regulated what sellers of securities could
say about their companies by prohibiting certain false and misleading speech and byrequiring the disclosure of accurate information to inform investors’ decisionmaking. See Helen Norton, What Twenty-First Century Free Speech Law Means for
Securities Regulation, 99 Notre Dame L. Rev. 97, 128–30 (2023) (tracing the historyof mandatory securities disclosure in the U.S. to at least 1846, and the history ofsimilar requirements in England to even earlier). In the Securities Act of 1933 and4Appellate Case: 24-1522

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Securities Exchange Act of 1934, Congress vested the Securities Exchange
Commission with broad authority to compel disclosures “as necessary or appropriate
in the public interest or for the protection of investors.” Securities Exchange Act of1934 §§ 12(b), 14(a), 15 U.S.C. §§ 78l, 78n; Securities Act of 1933 §§ 7, 10(c), 15
U.S.C. §§ 77g, 77j(c); see also Exchange Act § 13(a). And, as explained further
below, in the ninety years since, the Commission has regularly mandated generaland specific disclosures on a broad range of topics, from executive compensation toenvironmental risks. See infra Part II.
The main purpose of federal securities disclosure requirements is to protect
investors from information asymmetries, and capital markets from inefficiency andinstability. See, e.g., Securities Act § 2(b); Exchange Act §§ 14(a)(1), 23(a)(2); seealso Cynthia A. Williams, The SEC and Corporate Social Transparency, 112 Harv.
L. Rev. 1197, 1209–10 (1999). Disclosure reduces information asymmetries among
investors, and between investors and the issuers of securities, by arming all potential
investors with information that is relevant to investment and voting decisions. See,e.g., S. Rep. No. 73-47, at 1 (1933) (explaining that “[t]he basic policy [of the Act]is that of informing the investor of the facts concerning securities to be offered forsale in interstate and foreign commerce”); see also S. Rep. No. 73-792, at 12 (1934)(noting the importance of ensuring shareholders’ “adequate knowledge” of “thefinancial condition of the corporation, . . . [and] the major questions of policy, which

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are decided at [shareholders’] meetings.”). Addressing information asymmetries, inturn, promotes market efficiency and stability by empowering investors to better
assess and price risk. See, e.g., H.R. Rep. No. 73-1383, at 11 (1934); SEC v. Cap.
Gains Rsch. Bureau, 375 U.S. 180, 186 (1963).
Disclosure requirements that play this role generally do not raise First
Amendment concerns because they regulate the exchange of information about
securities not directly, but rather incidentally, as part of a broader regulatory scheme
aimed at securities dealing. As the Supreme Court has repeatedly explained, “theFirst Amendment does not prevent restrictions directed at commerce or conductfrom imposing incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S.
552, 567 (2011); accord Nat’l Inst. of Fam. & Life Advocs. v. Becerra (NIFLA), 585
U.S. 755, 769 (2018); cf. United States v. O’Brien, 391 U.S. 367, 376 (1968). Thisis especially true when a restriction is part of a finely reticulated regulatory scheme.
See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912 (1982) (citing antitrust
laws as an example); see also Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S.
457, 469 (1997) (upholding a compelled subsidy for speech in the context of abroader regulatory system). Thus, in SEC v. Wall Street Publishing Institute, theD.C. Circuit observed that the federal government’s power to impose securities
disclosure requirements on public companies derives from its “broad powers” toregulate securities markets. 851 F.2d 365, 372 (D.C. Cir. 1988); see also Bangor &6
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A. R. Co. v. Interstate Com. Comm’n, 574 F.2d 1096, 1107 (1st Cir. 1978) (similar).
Where the government “extensively regulates a field of economic activity,” the court
explained, “communication of the regulated parties often bears directly on theparticular economic objectives sought,” and “regulation of such communications has
been upheld.” Wall St. Publ’g Inst., 851 F.2d at 373 (internal citations omitted).2
Although the Supreme Court has not decided to the issue, it has repeatedly
suggested that regulating the exchange of information about securities is compatible
with the First Amendment. For example, in Ohralik v. Ohio State Bar Association,
the Court observed that “[n]umerous examples can be cited of communications thatare regulated without offending the First Amendment, such as the exchange of
information about securities, [and] corporate proxy statements,” and that “[e]ach ofthese examples demonstrates that the State does not lose its power to regulatecommercial activity deemed harmful to the public whenever speech is a componentof that activity.” 436 U.S. 447, 456 (1978) (cleaned up); accord Dun & Bradstreet,Inc. v. Greenmoss Builders, 472 U.S. 749, 758 n.5 (1985) (plurality opinion).

2

As the court acknowledged, a securities disclosure requirement might
nevertheless raise First Amendment concerns if it “poses the danger that ‘speechdeserving of greater constitutional protection [will] be inadvertently suppressed.’”See Wall St. Publ’g Inst., 851 F.2d at 374 (quoting Cent. Hudson Gas & Elec. Corp.
v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 579 (1980) (Stevens, J., concurring)).
The Rule, however, does not pose that danger. See infra Part IV (explaining that theRule does not chill protected speech).
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Similarly, in Paris Adult Theatre I v. Slaton, the Court remarked: “[N]either the First
Amendment nor ‘free will’ precludes States from having ‘blue sky’ laws to regulate
what sellers of securities may write or publish about their wares. Such laws are toprotect the weak, the uninformed, the unsuspecting, and the gullible from theexercise of their own volition.” 413 U.S. 49, 64 (1973) (internal citation omitted).
Indeed, historically, disclosure mandates that seek to inform and protect
investors have not drawn First Amendment scrutiny. See Frederick Schauer, The
Boundaries of the First Amendment: A Preliminary Exploration of Constitutional
Salience, 117 Harv. L. Rev. 1765, 1778 (2004); Norton, supra, at 100. Althoughmandates of this kind have, from the very beginning, drawn content- and speakerbased distinctions, Norton, supra, at 130; see also City of Austin v. Reagan Nat’lAdvertising of Austin, LLC, 596 U.S. 61, 79 (2022) (Breyer, J., concurring), courts
have generally not deemed this a sufficient reason for applying heightened
scrutiny—and for good reason. These distinctions are unavoidable, as any compelledcommercial disclosure requirement will apply only to certain information and tocertain companies. And, in this context in particular, they are “compelled by thehistorical rationales” of securities regulation, which are to inform and protect
investors who depend on registrants for investment-relevant information and toprotect capital markets from inefficiency and instability. Vidal v. Elster, 602 U.S.
286, 299–300 (2024) (emphasis added) (finding that this feature of trademark law,

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together with trademark protection’s longstanding coexistence with the First
Amendment, counseled against the application of heightened scrutiny to contentbased, but viewpoint-neutral, trademark restrictions); id. at 316 (Barrett, J.,
concurring in part) (similar); see also Norton, supra, at 130 (observing that securities
regulation “necessarily” draws content- and speaker-based distinctions “because
those distinctions are relevant to the expression’s potential for harm and value”).
II.

The Climate Disclosure Rule falls within the tradition of securities
disclosure requirements that do not raise First Amendment concerns.
Since its creation in 1934, the Commission has regularly mandated disclosures

to protect investors from the emerging risks and concerns of the day. These
disclosures have covered a wide array of topics, including executive compensation,
related-party transactions, and environmental regulation. 89 Fed. Reg. at 21,683–85(describing this history in detail). For example, in 2014, the Commission adopted arule requiring the disclosure of information about asset-backed securities because“the financial crisis highlighted that investors and other participants in the
securitization market did not have the necessary information and time to be able tofully assess the risks underlying asset-backed securities and did not value assetbacked securities properly or accurately.” Asset-Backed Securities Disclosure andRegistration, 79 Fed. Reg. 57,184, 57,186 (Sept. 24, 2014). And in 2020, theCommission adopted a rule requiring companies to disclose detailed information
about their workforces in the recognition that “human capital accounts for and drives
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long-term business value much more so than it did 30 years ago.” Remarks of Chair
Jay Clayton, Modernizing the Framework for Business, Legal Proceedings and Risk
Factor Disclosures (Aug. 26, 2020), https://perma.cc/R3DF-MJXF.
The Climate Disclosure Rule falls squarely within this tradition because it
mandates the disclosure of factual and accurate information that is relevant toinvestors’ valuation of securities and voting decisions. Broadly speaking, the Rulerequires a registrant to disclose the following:
1. Any climate-related risks that have had or are reasonably likely to havea material impact on its operations, strategy, or financial prospects, andthe actual and potential material impacts of any identified risks on its
business strategy, model, and outlook. 89 Fed. Reg. at 21,687–710. For
example, if a registrant determines that floods are reasonably likely to
substantially disrupt its operations in the next twelve months, it must
disclose that fact, along with the location and nature of the exposed
operations. And if a registrant uses a scenario analysis to assess its
exposure to that risk, it must disclose that analysis. This requirement
helps investors understand a registrant’s own assessment of the material
climate-related risks it faces. Id. at 21,852.3
2. Any governance and processes used by the company to manage
climate-related risks. Id. at 21,710–20. For example, if a registrant has
climate-related targets or goals, the registrant must disclose whether
and how its board of directors oversees progress toward those targets
or goals. Id. at 21,716. This disclosure is intended to improve investors’ability to evaluate a registrant’s overall management of climate-relatedrisks. Id. at 21,712.
3“Climate-related risk” is defined to mean “the actual or potential negative
impacts of climate-related conditions and events on a registrant’s business, resultsof operations, or financial condition,” and includes both physical risks (i.e., risks that
relate to weather events and trends) and transition risks (i.e., risks that relate to atransition to a low-carbon economy). Id. at 21,692.
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3. Any material climate-related targets or goals, the registrant’s plans forachieving those targets or goals, and its annual progress towards thosegoals. Id. at 21,720–26. For example, if a registrant has publicly
announced that it will achieve net zero emissions by 2045, it must
disclose this goal and any progress it has made towards it in its annual
filings. This disclosure helps investors assess a registrant’scommitment to achieving its climate-related goals. Id. at 21,856–57.
4. GHG emissions metrics. Larger registrants must disclose directemissions and emissions associated with energy purchases, when thoseemissions are material, together with an independent attestation report.
Id. at 21,726–72. This requirement seeks to empower investors toassess a registrant’s exposure to and management of transition risks aswell as progress towards its own climate-related goals, if any. Id. at
21,732.
5. The financial statement effects of severe weather events and othernatural conditions. Id. at 21,776–817. For example, if a registrant
suffers material financial losses because its factories are damaged byflooding or wildfires, it must disclose those losses in a footnote to its
audited financial statement. This requirement helps investors evaluate
a registrant’s exposure to physical risks. Id. at 21,779.
As the administrative record explains, investors need this information to makeinformed investment and voting decisions. Climate-related risks can affect acompany’s financial performance and position in myriad ways. Id. at 21,672.
“Climate-related natural disasters can damage issuers’ assets, disrupt theiroperations, and increase their costs.” Id. Market trends such as shifting consumer
preferences may reduce demand for carbon-intensive products. Id. And changes inlaw and policy may prompt companies to transition to lower carbon products andpractices. Id. An increasing number of investors “consider information about [these]risks to be important to their decision-making,” id. at 21,685, but existing disclosures
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are “fragmented and difficult for investors to compare across companies or reporting
periods,” id. at 21,670. The Rule seeks to “reduce information asymmetry” among
investors, and between investors and registrants, thereby enabling climate-relatedrisks “to be more fully incorporated into securities prices.” Id. at 21,830.
III.

At most, the Rule should be evaluated under Zauderer’s lenient standardof review.
If the Rule triggers First Amendment scrutiny at all, it should be evaluatedunder the framework that the Supreme Court established in Zauderer. In Zauderer,
the Court upheld a rule that required lawyers who advertised their services on acontingency-fee basis to disclose that clients could be required to pay fees and costs.
471 U.S. at 650–53. The Court acknowledged that the disclosure requirement
required attorneys “to provide somewhat more information than they mightotherwise be inclined to present.” Id. at 650. But, it observed, the disclosure waslimited to “purely factual and uncontroversial information about the terms underwhich [the attorney’s] services will be available.” Id. at 650–51. And an attorney’s
constitutionally protected interest in withholding this information was “minimal”
because the First Amendment’s “protection [of] commercial speech is justified
principally by the value to consumers of the information such speech provides.” Id.
at 651. The Court therefore concluded that while “unduly burdensome disclosure
requirements might offend the First Amendment by chilling protected commercial
speech,” “an advertiser’s rights are adequately protected so long as disclosure
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requirements are reasonably related to the State’s interest in preventing deception of
consumers.” Id.
Although Zauderer itself concerned a law intended to address consumer
deception in commercial advertising, its reasoning applies more broadly, as theSupreme Court reaffirmed just this term. See Moody v. NetChoice, LLC, 144 S. Ct.
2383, 2398 (2024) (directing courts on remand to apply Zauderer to state laws that
require a social media platform to give reasons to a user if it removes or alters theirposts); id. at 2439 (Alito J., concurring).4 In fact, the Court has long presumed that
Zauderer applies not just to advertising, but also to “disclosures about commercial
products” more generally. See NIFLA, 585 U.S. at 775 (“[W]e do not question thelegality of health and safety warnings long considered permissible.”); Pac. Gas &Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1, 16 n.12 (1986) (“The State, ofcourse, has substantial leeway in determining appropriate disclosure requirements
for business corporations.” (citing Zauderer, 471 U.S. at 651)). And although theEighth Circuit has not had occasion to consider the question, every other federal
court of appeals to address the issue has recognized as much. See CTIA – The

4

In doing so, the Court implicitly rejected NetChoice’s argument that Zauderer
does not apply outside “the context of correcting misleading advertising.” NetChoice
Reply Br. 22, Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024) (No. 22-277), 2024
WL 693684; NetChoice Br. 16, NetChoice, LLC v. Paxton, 144 S. Ct. 2383 (2024)(No. 22-555), 2023 WL 8437869.
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Wireless Ass’n v. City of Berkeley (CTIA), 928 F.3d 832, 844 (9th Cir. 2019)(collecting cases).
This conclusion is supported by Zauderer itself, which recognized thatcompelled commercial disclosures serve the principal justification for “[extending]First Amendment protection to commercial speech” in the first instance—“the value
to consumers of the information such speech provides.” 471 U.S. at 651. Thisrationale applies to any disclosure requirement that facilitates the free flow of
accurate commercial information—not merely to requirements that would prevent
misleading advertising. See Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 114 (2dCir. 2001) (“Protection of the robust and free flow of accurate information is theprincipal First Amendment justification for protecting commercial speech, andrequiring disclosure of truthful information promotes that goal.”); Am. Meat Inst. v.
U.S. Dep’t of Agric. (AMI), 760 F.3d 18, 22 (D.C. Cir. 2014) (en banc) (similar).
It follows that the Rule is subject to Zauderer scrutiny so long as it requires
the disclosure of factual and uncontroversial information about the regulated entity’s
goods or services. It does.
To be factual, a disclosure must communicate a statement of fact, notsubjective opinion. See Zauderer, 471 U.S. at 651. Each of the Rule’s disclosure
requirements meets this standard. They require companies to disclose relevant facts
about their own activities: what material climate-related risks they face, if any; how

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they are accounting for those risks, if at all, in their financials; how are they meetingany climate-related targets or goals; and how much GHG they emit in theiroperations. A registrant could conclude that they do not face any material climaterelated risks and still be in compliance. That the Rule requires companies to disclose
their determinations about future risks does not make the disclosures non-factual.
Cf. Nat’l Legal & Pol’y Ctr. Br. 55; Chamber of Com. of U.S. Br. 60. The Rule
merely “requires that management evaluate the consequences of [climate-related]risk as it would any known trend, demand, commitment, event, or uncertainty,” thatis, by making “an objective evaluation, based on materiality.” 89 Fed. Reg at 21,696.
Other disclosure requirements, such as those relating to market risk, also requireregistrants to convey “complex information about uncertain future risks.” Id. at
21,855 n.2800; see also id. at 21,810 (making similar observation about financial
statement disclosures). Ultimately, what companies are being asked to disclose is“information supported by the facts” and “conclusions driven by those facts”— not“unfalsifiable” opinions. R J Reynolds Tobacco Co. v. FDA, 96 F.4th 863, 878 (5thCir. 2024).
Factual statements of this kind are generally considered “uncontroversial” solong as there is no “disagree[ment] with the truth of the facts required to bedisclosed.” AMI, 760 F.3d at 27; R J Reynolds, 96 F.4th at 881; see also Milavetz,
Gallop & Milavetz, P.A. v. U.S., 559 U.S. 229, 249–50 (2010) (concluding that the15
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challenged mandate shared “the essential features of the rule at issue in Zauderer”
where it involved “only an accurate statement” of “factual information”). For
example, in AMI, the D.C. Circuit treated as uncontroversial a purely factual
statement about the national origin of meat, AMI, 760 F.3d at 27, even though thatstatement arguably involved a controversial issue, see Nat’l Ass’n of Mfrs. v. SEC(NAM), 800 F.3d 518, 529 (D.C. Cir. 2015). And in NetChoice, the Supreme Court
treated as uncontroversial state requirements that social media platforms explain
content take-downs and demotions—again, a topic that is highly politicized intoday’s public discourse. 144 S. Ct. at 2399 n.3; id. 2439 (Alito, J., concurring).
As these cases demonstrate, a statement of fact does not become controversial
merely because it “can be tied in some way to a controversial issue” or because alistener may rely on it to form an opinion. CTIA, 928 F.3d at 845; see also Cent.
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562 n.5(1980) (finding that commercial speech that “links a product to current publicdebate” is not entitled to greater protection because “many, if not most, products
may be tied to public concerns”). Petitioners point to NIFLA and the D.C. Circuit’s
decision in NAM, but those cases do not say otherwise. Cf. Nat’l Legal and Pol’y
Ctr. Br. 55; Chamber of Com. of U.S. Br. 64. In NIFLA, the Court foundcontroversial a requirement that clinics, whose purpose it was to oppose abortion,
disclose information about state-sponsored services including abortion—a message

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that was “fundamentally at odds with [their] mission.” CTIA, 928 F.3d at 845.5 And
in NAM, the D.C. Circuit considered “ideological” a requirement that companies
state on their websites whether their products were “DRC conflict free,” a label the
court believed “convey[ed] moral responsibility for the Congo war” and wastantamount to “compelling an issuer to confess blood on its hands.” 800 F.3d at 530.
The Rule does not require registrants to convey any such thing. Although thegeneral issue of climate change might be controversial, the Rule does not force
companies to convey a message to which they are morally or religiously opposed,
or to make an admission of moral culpability. It simply requires registrants todisclose facts about their business that they themselves have determined to bematerial. For example, have they identified climate-related risks that will materially
impact their operations in the next twelve months or beyond? And, if so, will thoserisks materially impact their business strategy or model? These disclosures do not
require companies to take a moral or ideological stand on climate change, to takesteps to reduce their GHG emissions, or to engage in any other mitigation activities.
In fact, they do not require registrants to opine on the issue of climate change at all.
They require registrants to disclose information about climate-related, not climate-5

The requirement also “in no way relate[d] to the services that [the] clinics
provide.” NIFLA, 585 U.S. at 769; cf. Zauderer, 471 U.S. at 651 (requiring
disclosures to concern the regulated party’s products or services).
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change–related, risks. See 89 Fed. Reg. at 21,692 (defining “climate-related risk” as
the “actual or potential negative impacts of climate-related conditions and events ona registrant[]”); id. at 21,799 (explaining that registrants need not determine wherea severe weather event or other natural condition “was, in fact, caused by climatechange”).
That some registrants do not believe climate change is happening or else
oppose regulation to mitigate it is therefore beside the point. Every disclosure
requirement ultimately upheld in the courts had its opponents, as did the disclosure
at issue in Zauderer itself. For example, when Zauderer was decided, “the bar [was]hopelessly divided on the issue of any advertising” by lawyers. Dorothy Virginia
Kibler, Commercial Speech and Disciplinary Rules Preventing Attorney Advertisingand Solicitation: Consumer Loses with the Zauderer Decision, 65 N.C. L. Rev. 170,
193 (1986). As the Fifth Circuit recently put it, “[i]f mere dislike sufficed, thegovernment could never compel any disclosure.” R J Reynolds, 96 F.4th at 881 n.58.
What matters for the purposes of Zauderer’s non-controversiality requirement is thatthe information is “factually straightforward, evenhanded, and readily understood.”
AMI, 760 F.3d at 34 (Kavanaugh J., concurring) (finding the requirement easily
satisfied in those circumstances). The Rule’s disclosures meet this description. Of
course, investors may decide that registrants’ disclosures reveal poor management

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or investment risk, but this is the very purpose of securities disclosuresrequirements.6
IV.

The Rule satisfies Zauderer review.
Under Zauderer’s deferential standard of review, compelled disclosures ofcommercial information are constitutional so long as they are “reasonably related to
the State’s interest” and not “unduly burdensome.” Zauderer, 471 U.S. at 651. The
Climate Disclosure Rule easily satisfies these requirements. The Rule is reasonably
related to the Commission’s longstanding mission of protecting investors andmarkets by providing investors with the information they need to assess registrants’financial conditions. And the Rule is not unduly burdensome because it does notchill registrants’ protected speech.
A.

The Rule is reasonably related to the Commission’s interest inprotecting investors and markets.

The Commission asserts an interest in “‘making capital markets more open
and efficient’ by giving ‘all investors equal access to all relevant information.’” SEC
Br. 107 (quoting United States v. Wenger, 427 F.3d 840, 850–51 (10th Cir. 2005));

6

Little surprise, then, that courts have routinely concluded that similar SEC
disclosures attract Zauderer scrutiny. See, e.g., Chamber of Com. v. SEC, 85 F.4th
760, 769 (5th Cir. 2023) (requirement that issuers disclose rationale for stockbuybacks); United States v. Wenger, 427 F.3d 840, 848–51 (10th Cir. 2005)(requirement that persons promoting or publicizing stock for compensation disclosethat fact along with the amount of payments received).
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see also 89 Fed. Reg. 21,671 (describing the Commission’s mission to protect
investors, maintain market efficiency, and promote capital formation). There can be
no real doubt that this interest is sufficiently strong. In Chamber of Commerce v.
SEC, for example, the Fifth Circuit concluded that the Commission’s interest “inpromoting the free flow of commercial information” was “more than enough” tojustify a requirement compelling registrants to disclose their reasons for stockbuybacks. 85 F.4th 760, 771 (5th Cir. 2023). There, the SEC sought to address a“supposed asymmetry in information surrounding the reasons issuers repurchasetheir shares,” so that investors could better “evaluate whether a share repurchase wasintended to increase the value of the issuer or, instead, represented an inefficient
deployment of capital.” Id. So too, here: by adopting the Rule, the Commission seeks
to reduce an information asymmetry surrounding the climate-related risks that
registrants face, so that investors may better evaluate the impact of those risks andhow registrants are measuring and responding to them. 89 Fed. Reg. at 21,673. The
Commission believes that giving investors this information will result in “[m]ore
efficient prices,” and, for some registrants, increased capital formation. Id. at
21,888.7

7

The Ninth Circuit has held that the government interest justifying a compelled
disclosure must be “substantial—that is, more than trivial.” See CTIA, 928 F.3d at
844. Other courts have held that an interest need only be “legitimate.” R J Reynolds,
96 F.4th at 885; Am. Hosp. Ass’n v. Azar, 983 F.3d 528, 540 (D.C. Cir. 2020).
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Petitioners are therefore misguided in arguing that “consumer curiosity” is nota strong enough state interest to sustain the Rule. See Liberty Energy Br. 58–59(citing Int’l Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 74 (2d Cir. 1996) (findingthat “consumer interest” was not an adequate justification under Central Hudson,
where the state disclaimed health or safety motivations for a labeling requirement));
Chamber of Com. of U.S. Br. 61–62 (same). Even assuming that Petitioners arecorrect that “consumer curiosity” is not sufficient under Zauderer, this principle has
no bearing here: the Commission does not seek to satisfy mere consumer interest,
but rather to facilitate its longstanding mission of investor protection and market
integrity by equipping investors with the information they need to evaluate
registrants’ financial condition. See AMI, 760 F.3d at 23 (historical pedigree ofcountry-of-origin information “lift[ed] [the disclosure] well above ‘idle curiosity’”);see also id. at 32 (Kavanaugh, J., concurring) (similar); Am. Hosp. Ass’n v. Azar
(AHA), 983 F.3d 528, 540 (D.C. Cir. 2020) (disclosure furthered legitimate
government interest in “promoting price transparency and lowering healthcare
costs”); Nat’l Elec. Mfrs. Ass’n, 272 F.3d at 115 (describing as “significant” thegovernment’s interest in “better inform[ing] consumers about the products theypurchase” as part of an “overall goal . . . to reduce the amount of mercury released

Commission’s interest easily satisfies the Ninth Circuit’s standard. See Wenger, 427
F.3d at 850 (describing Commission’s interest as “substantial”).
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into the environment”). This is an important objective that goes far beyond gratifying
idle curiosity.8
The Rule also furthers the Commission’s interest in a reasonable way. See
CTIA, 928 F.3d at 845. As the administrative record explains, institutional and retailinvestors find much “voluntary climate-related reporting to be lacking in quality andcompleteness and difficult to compare.” 89 Fed. Reg. at 21,680. Climate-related
information is often provided outside of Commission filings and, as such, is notnecessarily prepared with the interests of investors in mind. Id. Such information is
also not subject to the Commission’s standard disclosure controls and procedures,making it less reliable. Id. In other words, the Commission has identified a gap ininvestment-relevant information being provided to investors, and the Rule fills thatgap by requiring disclosure of such information. See United States v. Wenger, 427
F.3d 840, 851 (10th Cir. 2005) (holding that a rule requiring those paid to promotesecurities to disclose the amount of compensation they received was reasonably

8

Although this Court should conclude that the Commission’s stated interest is
sufficient under Zauderer, it is worth noting that the Commission has also explained
why many parts of the Rule are designed to prevent consumer deception, the precise
justification sustained in Zauderer. These include the requirement that larger
registrants file reports attesting to the accuracy of their GHG emission disclosures,
89 Fed. Reg. at 21,738 n.1089, the requirement that registrants provide “contextual
information” describing the assumptions and policy decisions that form the basis ofcertain financial statement disclosures, id. at 21,811, and the requirement that
registrants disclose “any progress made” toward their material climate-related goals
and targets to mitigate the risk of “greenwashing,” id. at 21,856.
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related to the Commission’s interest in “promoting capital markets”); Chamber ofCom., 85 F.4th at 771 (holding that a rule requiring registrants to disclose therationale for share buybacks was reasonably related to the Commission’s interest inthat case).
For essentially the same reasons, the Commission has demonstrated that theRule addresses a harm that is “real[,] not purely hypothetical,” and that it extends“no broader than reasonably necessary.” NIFLA, 585 U.S. at 776 (internal citations
omitted). The Commission’s documentation of a currently existing gap in necessary
investor information, see 89 Fed. Reg. at 21,679–80, establishes a harm that is real,rather than speculative. And because the agency has responded to that harm bycompelling speech that “relates directly to alleviating the information asymmetry” it
has identified, the Rule “reaches no broader than necessary.” Chamber of Com., 85
F. 4th at 771.
This direct relationship between ends and means makes the Rule categoricallyunlike the conflict-mining rule invalidated in NAM, which required companies todisclose whether their products were “DRC conflict free.” 800 F.3d at 518. In thatcase, a divided panel of the D.C. Circuit assumed that the Commission’s statedinterest of “ameliorating the humanitarian crisis in the DRC” would be sufficientunder Zauderer, but found that the rule would fail Zauderer’s “reasonably related”
test because neither the Commission nor Congress demonstrated that the rule was

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likely to be “effective[]” in “achieving” that interest. Id. at 524–25. The court
reasoned that the idea that the disclosure “will decrease the revenue of armed groups
in the DRC and [that] their loss of revenue will end or at least diminish thehumanitarian crisis there” was “entirely unproven and rests on pure speculation.” Id.
at 525. Even if the Court agrees with the panel’s reasoning in NAM, the disclosures
at issue in this case are much more tightly connected to the Commission’s interest,
in large part because that interest is in the “economic or investor protection benefits
that [the Commission’s] rules ordinarily strive to achieve.” Id. at 521; see also
Chamber of Com., 85 F.4th at 771; AHA, 983 F.3d at 540–41 (explaining that strict“evidentiary parsing” is not required when “the government uses a disclosuremandate to achieve a goal of informing consumers about a particular product trait”(cleaned up)). 9
B.

The Rule does not unduly burden speech.

The Rule does not unduly burden registrants in the relevant sense—that is, theRule does not chill or drown out registrants’ protected speech. See Zauderer, 471
U.S. at 651; NetChoice, 144 S. Ct. at 2439 (Alito, J., concurring). The Zauderer
inquiry typically does not ask whether the cost of producing or compilinginformation is itself unduly burdensome; those costs are relevant only if they are so

9Because the NAM panel concluded that Zauderer did not apply, its applicationof Zauderer was an “alternative ground for [its] decision.” NAM, 800 F.3d at 524.
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great that the disclosure scheme “essentially operates as a restriction on
constitutionally protected speech.” AMI, 760 F.3d at 27; see also AHA, 983 F.3d at
541 (making clear that a petitioner “must demonstrate a burden on speech” rather
than a financial one). In AMI, for example, the D.C. Circuit noted that the countryof-origin labeling rule was “of great concern to plaintiffs because of its cost
implications,” 760 F.3d at 20—the plaintiffs would have to segregate livestock inorder to comply with the rule. In its undue-burden analysis, however, the court did
not mention these costs, considering only whether there was evidence that therequirement had chilled plaintiffs’ protected speech, id. at 27.
Petitioners have not shown that the Rule unduly burdens their expression. The
Rule requires that registrants include certain factual climate-related information in
Commission filings, including registration statements, annual and quarterly reports,
and financial statements. 89 Fed. Reg. at 21,675–76. Nothing in the Rule would
require registrants “to endorse a particular viewpoint.” AHA, 983 F.3d at 541. For
example, if a registrant has no climate-related goals or targets in place, it need notespouse climate-related goals or targets in order to comply with the Rule. The Rulealso requires some disclosures about corporate board governance of climate-related
issues; if a registrant does not have a board committee or subcommittee dedicated tooverseeing climate-related risks, it need not create one to comply with the rule.
Likewise, nothing in the Rule would prevent registrants “from adding their own

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message” about climate change, climate-related risks, or climate-related
opportunities outside of Commission filings. Registrants remain unconstrained intheir ability to discuss, advocate for, and advertise around climate-related issues. See
AHA, 983 F.3d at 541; Md. Shall Issue, Inc. v. Anne Arundel Cnty., 91 F.4th 238,
251 (4th Cir. 2024) (finding that disclosures were not unduly burdensome because
they would not “commandeer or overwhelm any message that the gun dealers would
wish to make to gun purchasers”), petition for cert. docketed, No. 23-1225 (U.S.
May 21, 2024). Because the Rule “compels speech solely within the narrow confinesof SEC filings,” it is not the type of disclosure that raises concerns about chilling“protected commercial speech.” Chamber of Com., 85 F.4th at 772.10
Conclusion
For these reasons, the Court should conclude that the Climate Disclosure Ruledoes not violate the First Amendment.

10

In response to the Rule’s disclosure requirements, some registrants may refrainfrom “greenwashing”—that is, the practice of falsely conveying to investors theperception that they are taking meaningful action towards climate-related targets orgoals. But that is not a burden on protected speech. Cent. Hudson, 447 U.S. at 563(“[T]here can be no constitutional objection to the suppression of commercial
messages that do not accurately inform the public about lawful activity.”); see also
Zauderer, 471 U.S. at 638. Indeed, Zauderer itself involved a disclosure requirementthat sought to remedy misleading advertising, and courts have routinely upheld
similar mandates since. See supra Part III; see also 1-800 Pain Referral Serv., LLC
v. Otto, 744 F.3d 1045, 1056, 1061–63 (8th Cir. 2014).
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Dated: August 15, 2024

Respectfully submitted,/s/ Ramya Krishnan
Ramya Krishnan
Stephanie Krent
Alex Abdo
Knight First Amendment Institute atColumbia University
475 Riverside Drive, Suite 302
New York, NY 10115(646) 745-8500
ramya.krishnan@knightcolumbia.org
Counsel for Amici Curiae

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Certificate of ComplianceThis brief complies with the type-volume limit of Federal Rules of Appellate
Procedure 29(a)(5) and 32(a)(7)(B) because, excluding the parts of the document
exempted by Federal Rule of Appellate Procedure 32(f), it contains 6,494 words.
This brief also complies with the typeface and type-style requirements of Federal
Rule of Appellate Procedure 32(a)(5)–(6) because it was prepared using Microsoft
Word in 14-point Times New Roman font, a proportionally spaced typeface. This
brief has been scanned for viruses and is virus-free.
Dated: August 15, 2024

/s/ Ramya Krishnan
Ramya Krishnan

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Certificate of Service
I, Ramya Krishnan, certify that on August 15, 2024, I electronically filed theforegoing brief with the Clerk of the Court for the United States Court of Appeals
for the Eighth Circuit using the CM/ECF system. I certify that all participants in thecase are registered CM/ECF users and that service will be accomplished by the
CM/ECF system.
Dated: August 15, 2024

/s/ Ramya Krishnan
Ramya Krishnan

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Appendix: List of Amici Curiae
Vincent Blasi
Corliss Lamont Professor Emeritus of Civil Liberties
Columbia Law School
Caroline Mala Corbin
Professor of Law
University of Miami School of Law
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley, School of Law
Evelyn Douek
Assistant Professor of Law
Stanford Law School
Ellen P. Goodman
Distinguished Professor of Law
Rutgers Law School
Sarah Haan
Class of 1958 Uncas and Anne McThenia Professor of Law
Washington and Lee School of Law
Genevieve Lakier
Professor of Law, Herbert and Marjorie Fried Teaching Scholar
University of Chicago Law School
Lawrence Lessig
Roy L. Furman Professor of Law and Leadership
Harvard Law School
Helen Norton
University Distinguished Professor and Rothgerber Chair in Constitutional Law
University of Colorado School of Law

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Francesca L. Procaccini
Assistant Professor of Law
Vanderbilt Law School
Amanda Shanor
Assistant Professor of Legal Studies & Business Ethics and Wolpow Family
Faculty Scholar
The Wharton School
University of Pennsylvania
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law
The University of Chicago
Nadine Strossen
John Marshall Harlan II Professor of Law, Emerita
New York Law School
Nelson Tebbe
Jane M.G. Foster Professor of Law
Cornell Law School
Rebecca Tushnet
Frank Stanton Professor of the First Amendment
Harvard Law School
David C. Vladeck
A.B. Chettle, Jr., Chair in Civil Procedure
Georgetown University Law Center
Laura Weinrib
Fred N. Fishman Professor of Constitutional Law
Harvard Law School

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