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The First Amendment Implications of a Mandatory Environmental, Social, and Governance Disclosure Regime

November 2018

Citation: 48 ELR 10989

Issue: 11

Author: Rebecca Susko

It is undeniable that globalization has increased the extent to which corporate entities are connected to the daily lives of people from every corner of the world. Yet coupled to the growing reach of corporations is a growing demand that the behavior of private business reflect public aims. Specifically, there is a rapidly growing interest across business, government, and civil society in using disclosure regimes to transform corporate behavior. In many ways, this trend has been embraced by the corporate world through the adoption of voluntary reporting on environmental, social, and governance (ESG) indicators. While the United States has certain environmental and social disclosure requirements in industry-specific contexts, there is currently no mandatory general ESG reporting framework. One safeguard shielding corporations from a potential mandatory disclosure regime is the free speech protections afforded by the First Amendment. This Comment analyzes the First Amendment implications if the U.S. Securities and Exchange Commission were to implement a mandatory ESG disclosure regime.

Rebecca Susko received her J.D. magna cum laude from Fordham University School of Law in 2018. She is currently serving in the Honor Law Graduate Program in the Office of the General Counsel at the U.S. Nuclear Regulatory Commission.

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