In recent years, the Supreme Court has utilized the First Amendment as a sword to invalidate economic regulations. This Article contends that the Court’s recent jurisprudence renders constitutionally invalid certain speech compelled by the Securities and Exchange Commission (“S.E.C.”) regarding shareholder activism. This Article makes two scholarly contributions. 

First, while scholars have mined the field of compelled speech, they have paid little attention to the speech compelled by the S.E.C., and when considered, they invariably side with its constitutionality. This Article pushes against that tide, arguing against the constitutionality of certain rules that operate to the detriment of shareholder-activists and certain other rules that operate to their benefit. 

Second, this Article fills a scholarly void in the long-standing debate regarding shareholder activism. State law allocates the management of a corporation to a board of directors — not to shareholders. Certain shareholders are bound to disagree with certain decisions by the board. Shareholder-activists agitate for change. Investors, practitioners, and academics have long debated the benefits and detriments of shareholder activism. Perhaps shareholder-activists serve as an important check on management, ultimately benefiting the targeted corporations and their shareholders. Alternatively, activists may distract management, perhaps leading to an emphasis on short-term performance, ultimately harming the targeted corporations and their shareholders. Those participating in the debate have argued for tools to either encourage or discourage such activism, but those debates have overlooked an important tool — the First Amendment. 

Part I addresses the activist-unfriendly Schedule 13D, by which the S.E.C. compels a block-holding activist to identify the corporation that she found to be undervalued and her plans to improve that corporation’s value. Activists expend significant resources identifying such corporations and crafting such plans, but the government disincentivizes that research by requiring its public disclosure — research that has been endorsed by the Court and the S.E.C. Congress and the S.E.C. premised the obligation to disclose such information on the activist’s presumed ability to implement her plans — a premise that, if not faulty when Congress and the S.E.C. originally acted decades ago, is no longer true today. Why compel the activist to disclose plans that she cannot legally implement? 

Part II addresses the activist-friendly Rule 14a-8, which compels a publicly traded corporation to disseminate an activist’s proposal and her advocacy in support thereof in the corporation’s own disclosure document. Rule 14a-8 benefits the activist by sparing her the significant expenses of mounting her own solicitation. Implicitly, the board of directors — which is legally charged to manage the corporation and to maximize its value — opposes the activist’s proposal as not in furtherance of the best interests of the corporation and all of its shareholders. Notwithstanding that opposition, the S.E.C. compels the corporation to circulate the activist’s proposal, as well as her advocacy in support thereof. The Court repeatedly has frowned on compelling one party to convey the antagonistic message of another party. A conclusion extends the analyses of Parts I and II, identifying other S.E.C. rules related to shareholder activism that are in jeopardy of being invalidated as unconstitutionally compelled speech.