Corporate Speech and Consumer Responsibility

By Eric Ashton for

The current conflict in Congo is the deadliest since World War II. Since 1998 fighting among dozens of rebel groups has led to the deaths of more than 5 million people and spurred an epidemic of sexual assault that led the U.N to call Congo the “rape capital of the world.” While these atrocities continue in Congo, multi-national companies reap financial benefits from an illicit mineral trade that helps perpetuate the conflict.

The U.N reports that rebel groups obtain 20-40 percent of their revenue through the minerals trade. The rebel groups fight to control tin, tungsten, tantalum, and gold mines in Eastern Congo. They force people to mine these minerals which are then smuggled to neighboring countries. The minerals are then purchased by multinational companies for the manufacturing of consumer electronics. The United States congress recognized that “the exploitation and trade of conflict minerals originating in the Democratic Republic of the Congo is helping to finance conflict characterized by extreme levels of violence, and contributing to an emergency humanitarian situation therein.”

There are two provisions buried deep within the Dodd Frank Financial Reform Act that are designed to increase corporate responsibility and transparency towards source minerals and supply chains. Section 1502 created a mandate that products be labeled “not DRC conflict free” if they contain minerals from conflict regions in The Democratic Republic of Congo. Section 1504 requires U.S. companies that extract oil, natural gas or minerals for commercial development to report all payments made to foreign countries. In support of provision 1504 co-sponsor Sen. Lugar stated, “Transparency empowers citizens, investors, regulators, and other watchdogs.”

These reporting requirements are now steeped in litigation and the heart of provision 1502’s “conflict free” reporting requirement was ruled unconstitutional by the Court of Appeals of the D.C Circuit. [1] The court found that the requirement to report products as “not DRC conflict free” would force a corporation to admit it “had blood on its hands.” In the mind of the Court of Appeals, requiring a corporation to “confess” to such an ethical violation interferes with that company’s freedom of expression.

The court reasons that such a “metaphorical” admission of culpability is inappropriate because minerals “do not fight the conflict” and only “indirectly finance armed groups.” In the court’s view, the corporation is not responsible for the conflict. But the court’s reasoning is a naïve circumvention of the larger point. There is an undisputed connection between the mineral trade and the ongoing conflict. Public disclosure would make it easier for consumers to make responsible choices.

This ruling raises broader questions about corporate free speech that will continue to shape the ability of consumers and investors to receive information. The United States Supreme Court has established that corporations enjoy constitutional rights to freedom of expression. But the boundary and scope of these rights, as weighed against consumer interests, remains blurry.

Following the “DRC conflict free” decision, the Court of Appeals of the D.C Circuit upheld USDA regulations requiring disclosure of country of origin for meat products. [2] The court found that the “substantial” consumer interest of buying American made products and the ability to make informed health decisions outweighed the “minimal” corporate interest to not report information. The court’s decision is largely shaped by the idea that forced corporate speech should be limited to information of a “factual and noncontroversial nature.” But the distinction between noncontroversial facts and controversial information is bound to be fuzzy. As the courts continue to sift through this distinction they should keep in mind the United States Supreme Court’s declaration that in a free market economy it is a matter of public interest that consumer decisions be “intelligent and well-informed.”

Consumers reap significant benefits from the competition, innovation, and productivity that our free market economy creates. And as benefactors of this system it is our responsibility to understand that our choices have consequences. Responsible consumerism can shape the actions of corporations. If the public refuses to buy from a company, the company either changes or it dies. That is idealistically American. But responsible consumer decisions can only be made when consumers are well informed. Congress understood this when it passed 1502 and 1504 of the Dodd Frank Financial Reform Act. This is why the USDA regulates country of origin labeling. Let us hope the U.S courtrooms understand this in future corporate speech decisions.

Eric Ashton is a JD Candidate, Class of 2015. Ashton’s entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.



[1] Nat’l Ass’n of Mfrs. V. S.E.C., 748 F.3d 359 (D.C Cir. 2014).

[2] Am. Meat Inst. V. U.S. Dep’t of Agric., 760 F.3d 18 (D.C Cir. 2014).