Sean Griffith of Fordham Law argues that the SEC’s climate-disclosure rules violate the First Amendment:

The SEC is, at its core, a regulator of speech. Because no branch or agency of the government has First-Amendment immunity, the SEC’s constitutional authority depends upon Supreme Court precedent granting deference to regulations of “commercial speech.” Commercial speech — speech involved in the purchase or sale of a good or service — receives less First-Amendment protection so that the government can pass laws to protect consumers. The SEC’s mandatory-disclosure regime, involving as it does the purchase and sale of securities, operates under this paradigm.
But there is a catch. Regulations compelling commercial speech receive deferential review only when they are “purely factual and uncontroversial,” according to the 1985 case Zauderer v. Office of Disciplinary Council. The “uncontroversial” requirement works to ensure that the regulation is motivated solely to protect consumers. It is a pretext check. Applied to the SEC, this means that only regulations that are plainly grounded in investor protection are uncontroversial and therefore entitled to deference. Regulations aiming at some other purpose are controversial and therefore subject to heightened scrutiny.

Read the whole thing here.