The Collision Between the First Amendment and Securities Fraud
Wendy Gerwick Couture
University of Idaho College of Law
June 6, 2013
Alabama Law Review, 2014, Forthcoming
This Article seeks to correct the imbalance that occurs when the First Amendment and securities fraud collide. Under current precedent, securities analysts, credit rating agencies, and financial journalists are subject to differing liability standards; depending on whether they are sued for defamation or for securities fraud. Under New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964), First Amendment protections apply in the defamation context in order to prevent the chilling of valuable speech, yet courts have declined to extend these protections to the securities fraud context. This imbalance threatens to chill valuable speech about public companies. To prevent the dangerous chilling effect of potential securities fraud liability, this Article contends that the New York Times protections should apply equally in securities fraud cases. Therefore, under this Article’s recommendation, a securities fraud claim asserted against a non-commercial speaker for speech concerning a public company cannot prevail absent a showing of actual malice, by clear and convincing evidence, and subject to independent appellate review.
Number of Pages in PDF File: 82
Keywords: securities regulation, securities litigation, securities fraud, First Amendment, defamationAccepted Paper Series
Date posted: June 7, 2013 ; Last revised: July 19, 2013
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