Amnesty International has filed a supplemental brief which continues to advocate for a rehearing en banc in the conflict minerals case. The argument is this: American Meat Institute v. U.S. Department of Agriculture expressly overruled a portion of the opinion in the conflicts minerals case. That makes it clear that the appeals court erred in failing to apply the standard for First Amendment review set forth in Zauderer v. Office of Disciplinary Counsel. As American Meat held, an interest in preventing consumer deception is not required for Zauderer to apply.
The brief goes on to discuss what would probably be a key point in any rehearing – does the conflict minerals disclosure need to be purely factual and uncontroversial? According to the brief the answer is “no”. Amnesty International believes Zauderer’s reference to “purely factual and uncontroversial information” was descriptive with respect to the disclosure at issue and did not purport to set a threshold requirement for Zauderer’s application in all cases. According to the brief Zauderer does nothing more than indicate that the government cannot require companies to express opinions on matters of politics, nationalism, religion, and the like under the guise of a commercial disclosure requirement.
Of course, the brief argues that if you don’t believe the foregoing, in any event the conflict minerals disclosure is purely factual and uncontroversial.