In June of 2011, Groupon, Inc. (“Groupon”) made the first step toward its highly anticipated initial public stock offering (“IPO”) by filing with the U.S. Securities and Exchange Commission (“SEC” or the “Commission”). It was projected that the deal could raise as much as one billion dollars at a valuation of around twenty billion. By September of 2011, however, it was reported that the blockbuster deal would probably have to be delayed because of an internal email that the Chief Executive Officer of Groupon wrote that was leaked to the press. How could an internal email derail the largest IPO of the year? The concern was that the email, once leaked to the public, had violated the quiet period imposed by the gun jumping provisions of the Securities Act of 1933 (the “Securities Act”). Thus, it is easy to see why the SEC has also been called the “Content Regulation Commission.” Securities regulation is, after all, generally the regulation of speech.
Accordingly, scholars have argued over the constitutionality of securities regulations. Their analyses have tended to approach the issue within the framework of the commercial speech doctrine. However, the U.S. Supreme Court’s recent holding in Citizens United v. Federal Election Commission suggests that constitutional protections of corporate political speech are also ripe for use in challenges to the restriction and compulsion of disclosure by the SEC.