Loretta Lynch, United States Attorney General, explained in a letter to Paul Ryan, Speaker of the House, why the United States did not submit a writ of certiorari with respect to the conflict minerals decision:
- The panel majority and the dissenting judge disagreed as to the proper standard of scrutiny for First Amendment challenges to compelled-disclosure requirements of the sort at issue here. But because the majority concluded in the alternative that the challenged requirements would be unconstitutional even under the more lenient standard, this would be a poor case in which to seek Supreme Court clarification of the proper standard of scrutiny.
- The panel majority and the dissenting judge also disagreed on the question whether the disclosure requirements at issue here -which compel some issuers to state publicly that their products have “not been found to be ‘DRC conflict free”‘ -are properly characterized as involving “purely factual and uncontroversial information.” The need to resolve that case-specific issue could likewise make it difficult for the Supreme Court to provide useful guidance concerning the application of the First Amendment to more typical disclosure requirements.
- The panel majority also expressly recognized that its holding of unconstitutionality may apply only to the Commission’s rule rather than to the underlying statute. If, after remand, it is determined that the statute itself does not require use of the specific phrase “not been found to be ‘ DRC conflict free,'” the Commission could promulgate an amended disclosure rule that attempts both to fulfill the statutory mandate and to comport with the court of appeals’ view of the First Amendment. The decision not to seek Supreme Court review will allow the Commission or the district court to determine in the first instance, subject to further review, whether such an amended rule can and will be promulgated.
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