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Supreme Court of the United States ______ No. 09-1176 IN THE Supreme Court of the United States _________________________ PIRATE INVESTOR LLC AND FRANK PORTER STANSBERRY , Petitioners, v. UNITED STATES SECURITIES AND EXCHANGE COMMISSION , Respondent. _________________________ ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND MEDIA ORGANIZATIONS IN SUPPORT OF PETITIONERS _________________________ Lucy A. Dalglish Counsel of Record Gregg P. Leslie The Reporters Committee for Freedom of the Press 1101 Wilson Blvd., Suite 1100 Arlington, Va. 22209 (703) 807-2100 [email protected] (Additional counsel for amici listed on inside cover.) TABLE OF CONTENTS Table of Authorities ...................................................iii Statement of Interest.................................................. 1 Summary of Argument ............................................... 4 Argument .................................................................... 7 I. The decision below applying § 10(b) to a publisher of general financial recommendations with no First Amendment safeguards will impermissibly chill valuable speech regarding financial issues ...................... 7 A. Financial reporting has long been a cornerstone of journal- ism, informing the public and interpreting economic infor- mation on its behalf....................................... 8 II. Regardless of connection to cur- rent affairs, the First Amend- ment fully protects financial and economic advice................................................. 13 III. The Fourth Circuit should have conducted an independent appel- late review because of the instant case’s First Amendment implica- tions................................................................... 16 A. Restrictions on speech are pre- sumptively invalid and any such restriction must be nar- rowly construed ........................................... 16 ii B. The First Amendment re- quires a heightened eviden- tiary showing that a commu- nication, always presumed to be protected, should be stripped of that protection .......................... 18 C. This Court should clarify the importance of First Amend- ment deference and elucidate that restrictions on speech should be narrowly construed..................... 19 IV. The application of § 10(b) to pub- lishers violates the First Amendment because it will have substantial effects on newsgath- ering .................................................................. 20 Conclusion................................................................. 23 . iii TABLE OF AUTHORITIES Abood v. Detroit Board of Education , 431 U.S. 209 (1977)........................................... 13 Bose Corp. v. Consumers Union of United States, 466 U. S. 485 (1984).............................. 16, 18, 19 Cantwell v. Connecticut , 310 U.S. 296 (1940)........................................... 17 Cohen v. Cowles Media Co. , 501 U.S. 663 (1991)............................... 20, 21, 22 Daniel v. Dow Jones & Co. , 520 N.Y.S.2d 334 (N.Y. Civ. Ct. 1987)............................... 12, 15, 18 Food Lion Inc. v. Capital Cities/ABC , 194 F.3d 505 (4th Cir. 1999)............................. 21 Ginsburg v. Agora, Inc ., 915 F. Supp. 733, 740 (D. Md. 1995)................ 14 Houston v. Hill , 482 U.S. 51 (1987)............................................. 17 Lowe v. SEC , 472 U.S. 181 (1985)............................... 14, 17, 21 Lubin v. Agora , 882 A.2d 333 (Md. 2005)................................... 14 New York Times v. Sullivan , 376 U.S. 254 (1964)..................................... 16, 18 iv Reynolds v. Murphy, 188 S.W.3d 252 (Tex. App. 2006) ..................... 15 NAACP v. Button , 371 U.S. 415 (1963)........................................... 16 Nat’l Life Ins. Co. v. Phillips Pub’g , 793 F. Supp. 627 (D. Md. 1992)........................ 18 Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971)........................................... 14 Reliance Ins. Co. v. Barron's , 442 F. Supp. 1341 (S.D.N.Y. 1977)................... 21 SEC v. Pirate Investor , 580 F. 3d 233 (4th Cir. 2009)...................... 12, 19 Speiser v. Randall , 357 U.S. 513 (1958)........................................... 17 Sup’t of Ins. v. Bankers Life & Cas. Co , 404 U.S. 6 (1971)............................................... 19 Thomas v. Collins , 323 U.S. 516 (1945)........................................... 14 Thornhill v. Alabama , 310 U.S. 88 (1940)............................................. 13 Time, Inc. v. Hill , 385 U.S. 374 (1967)........................................... 18 United States v. Stevens , No. 08-769, 130 S. Ct. ____ (April 20. 2010) ...... 8 v STATUTES AND REGULATIONS U.S. Supreme Court Rule 37...................................... 1 Securities Exchange Act of 1934 § 10(b) (codified at 15 U.S.C. 78j(b))......................................... passim OTHER Edward Chancellor, Ponzi Nation , INSTITUTIONAL INVESTOR , Feb. 7, 2007 ..................................... 10 Joint Appendix...................................................... 4, 15 John D. McKinnon and Randall Smith, Greenspan on Capitol Hot Seat , THE WALL STREET JOURNAL , April 8, 2010 at A4.............................................. 7 Katharine Q. Seelye and James Barron, Wall Street Journal Wins 2 Pulitzer Prizes , N.Y. TIMES , April 17, 2007 at B8.......................................... 11 Letter from Thomas Jefferson to Edward Carrington, Delegate to the Continental Congress (Jan. 16, 1787).................................................................. 17 Pet. Cert. .............................................................. 5, 12 Press Release, Long Island Univ., Long Island Uni- versity Announces Winners of 2007 George Polk Awards (Feb. 19, 2008) ..................................... 10 Press Release, Long Island Univ., Long Island Uni- versity Announces Winners of 2001 George Polk Awards (Feb. 20, 2002) ..................................... 11 vi Press Release, The New York State Society of CPAs, Journalists Receive Awards from NYSSCPA for Financial Reporting (March 31, 2009)............. 11 Two Important Receiverships Cause Depression, N.Y. TIMES , January 2, 1894, at 10............................ 8 Wall St. Cheered By Bankers’ Views, N.Y. TIMES , January 18, 1931, at 41...................................... 8 1 STATEMENT OF INTEREST 1 Amici curiae represent individual and institu- tional members of the press. The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information inter- ests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970. With some 600 members, ASNE is an organiza- tion that includes directing editors of daily newspa- pers throughout the Americas. ASNE changed its name in April 2009 to the American Society of News Editors and approved broadening its membership to editors of online news providers and academic lead- ers. Founded in 1922, as the American Society of Newspaper Editors, ASNE is active in a number of areas of interest to top editors with priorities on im- proving freedom of information, diversity, readership and credibility of newspapers. The Associated Press is a global news agency organized as a mutual news cooperative under the New York Not-for-Profit Corporation Law. AP’s 1 Pursuant to Sup. Ct. R. 37, counsel for the amici curiae de- clare that they authored this brief in total with no assistance from the parties; that no individuals or organizations other than the amici made a monetary contribution to the prepara- tion and submission of this brief; and that written consent of all parties to the filing of the brief amici curiae has been filed with the Clerk. 2 members include approximately 1,500 daily newspa- pers and 25,000 broadcast news outlets throughout the United States. AP has its headquarters and main news operations in New York City and maintains bu- reaus in 240 cities worldwide. AP news reports in print and electronic formats of every kind reach a subscriber base that includes newspapers, broadcast stations, news networks and online information dis- tributors in 121 countries. The Association of American Publishers, Inc. (“AAP”) is the national trade association of the U.S. book publishing industry. AAP’s members include most of the major commercial book publishers in the United States, as well as smaller and non-profit pub- lishers, university presses, and scholarly societies. AAP members publish hardcover and paperback books in every field, educational materials for the elementary, secondary, postsecondary, and profes- sional markets, scholarly journals, computer soft- ware, and electronic products and services. The As- sociation represents an industry whose very exis- tence depends upon the free exercise of rights guar- anteed by the First Amendment. The Radio Television Digital News Association is the world’s largest and only professional organiza- tion devoted exclusively to electronic journalism. RTDNA is made up of news directors, news associ- ates, educators and students in radio, television, ca- ble and electronic media in more than 30 countries. RTDNA is committed to encouraging excellence in the electronic journalism industry and upholding First Amendment freedoms. The Thomas Jefferson Center for the Protection
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