Blood Gold And Free Speech

Ron Fein Legal Director, Free Speech For People
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What do blood gold, cigarette warning labels, and employee “know your rights” posters have in common? The answer lies in a series of recent court decisions that suggest that some judges don’t see a difference between a Jehovah’s Witness and a multinational corporation.

It all begins with the First Amendment to our Constitution, which guarantees our freedom of speech — including our right not to speak. That’s why the Supreme Court has ruled that Jehovah’s Witnesses can’t be forced to recite the Pledge of Allegiance, or to put New Hampshire license plates that say “Live Free or Die” on their cars. As Justice Jackson wrote in the pledge case, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

But in recent years, courts have taken the absurd step of comparing big businesses to Jehovah’s Witnesses. In just three years, a federal court of appeals in Washington, D.C. has issued three decisions striking down common-sense business regulations as violating corporations’ supposedly sacred right to freedom of speech.

In 2012, the court struck down new federally-required warning labels on cigarette packages — it said the labels violated the tobacco companies’ First Amendment right not to speak. And in 2013, it threw out a rule that required employers to post an 11-by-17 employee breakroom “know your rights” poster.

That brings us to blood gold. In some war-torn parts of Africa, armed warlords control the mining and trading of minerals such as gold and tungsten, and the trade in these minerals fuels an ongoing humanitarian catastrophe. Congress came together and passed a law in 2010 to do something about these “conflict minerals.”

The law — which was applauded by churches and humanitarian groups — didn’t ban importing or using conflict minerals. Instead, it ordered the Securities and Exchange Commission, which polices publicly-traded corporations, to make those companies report whether their products contained or used minerals that could be traced back to armed groups. That disclosure would help investors and customers understand which companies trade in conflict minerals.

But the National Association of Manufacturers challenged the law as violating its First Amendment right not to speak. The court agreed; it said that Congress couldn’t require these companies to disclose whether their products were “conflict free” because that would be like compelling a company “to confess blood on its hands.”

Mega-corporations don’t have a First Amendment right not to file reports with the government. These companies get huge value from trading in America’s stock markets, which are still the envy of the world for their transparency and rule of law. These companies already have enormous influence in Congress. But in this rare case where they didn’t get their way, they managed to convince a court to throw out the law.

Courts play an important role in protecting our individual freedoms. And when courts intervene to protect the freedom of speech of lonely dissenters or unpopular groups, we recognize the importance of protecting that freedom. But manufacturing companies aren’t Jehovah’s Witnesses, and the courts should know the difference. Thanks to the court, it’s harder for us to know which companies are trading in blood gold, and Congress’s compromise approach to reducing the blood gold trade may be hobbled. And that means that real people, both in Africa and right here in America, will suffer. Because when corporations rush to court crying about their First Amendment rights, real people pay the price.

Ron Fein is the Legal Director of Free Speech For People.