In April 2016, the U.S. Department of Labor (DOL) issued a new rule – commonly known as the fiduciary rule – to protect workers saving for retirement from conflicted advice from their financial advisers. The U.S. Chamber of Commerce, the American Council of Life Insurers and a host of other corporate interests subsequently sued DOL in the Northern District of Texas. One of their claims is that the rule is a content-based restriction on the commercial speech of their members and violates the First Amendment.
Public Citizen filed an amicus brief in support of DOL, arguing that industry’s First Amendment argument should be rejected because the fiduciary rule does not regulate speech; rather, it regulates the terms of a commercial or professional relationship and duties that attach to it. The brief also demonstrates that even if the rule were a content-based commercial speech regulation, a long line of U.S. Supreme Court precedent, confirmed by recent decisions, demonstrates that regulation of commercial speech is not subject to strict scrutiny, even if the regulation differentiates between content of different types of speech. The court denied Public Citizen’s motion for leave to file an amicus brief. The court later ruled for DOL on the motions for summary judgment.
The industry groups appealed. In the Fifth Circuit Court of Appeals, Public Citizen filed an amicus curiae brief arguing that the rule is not a regulation of speech and that, even if it is viewed as regulating speech, it can be sustained under the standard of review applicable to restrictions of commercial speech.
On March 15, 2018, the court struck down the rule without reaching the First Amendment issue.