Controlling Corporate Speech: Is Regulation Fair Disclosure Unconstitutional?

83 Pages Posted: 23 Aug 2005

See all articles by Antony Page

Antony Page

Florida International University (FIU) - College of Law

Katy H. H. Yang

Independent

Abstract

We analyze whether Regulation Fair Disclosure, SEC Chairman Arthur Levitt's crowning achievement, violates the First Amendment. Regulation FD requires that a company that discloses material non-public information to certain private audiences must also make that information public, subject to certain safe-harbors. The Regulation solely targets speech, acting either to compel it to a public audience or as a burden on private disclosure. Part I examines the reach of Regulation FD, the enforcement actions to date, and currently available empirical data. Part II provides an introduction to the interaction of the First Amendment and SEC regulations affecting speech. Part III broadens the analysis to include regulations compelling or burdening commercial and mixed commercial/non-commercial speech, and applies these lessons to Regulation FD in light of the clear trend towards greater protection of corporate speech. Finally, Part IV analyzes the SEC's justifications for Regulation FD and evaluates how effectively they are achieved. We conclude that given the poor fit between the SEC's means and ends, Regulation FD should not survive a constitutional challenge.

Keywords: Government regulation, fair disclosure, selective disclosure, First Amendment, insider trading

Suggested Citation

Page, Antony and Yang, Katy H. H., Controlling Corporate Speech: Is Regulation Fair Disclosure Unconstitutional?. UC Davis Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=783968

Antony Page (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States

Katy H. H. Yang

Independent ( email )

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