Whether the First Amendment protects a securities market participant from being punished and enjoined by the government for intentionally or recklessly making untrue statements or omissions of material fact while criticizing a publicly traded corporation, absent proof of fraud or deception

QUESTIONS PRESENTED Section 10(b) of the Securities Exchange Act of 1934 prohibits any “manipulative or deceptive device or contrivance,” as defined by Securities and Exchange Commission rule, in connection with the purchase or sale of any security. SEC Rule 10b-5— which this Court has repeatedly held cannot create or expand liability beyond what § 10(b) prohibits— purports to make it unlawful not only “[t]o employ any device, scheme, or artifice to defraud” or “[t]o engage in “any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,” but also “[t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” The jury in this case found no “device, scheme, or artifice to defraud” and no “act, practice, or course of business which operates or would operate as a fraud or deceit.” But it did find that three sentences or sentence fragments, embedded within Petitioners’ five published written reports and four online interviews about a publicly traded corporation, were intentionally or recklessly made “untrue statements of material fact or [omissions] to state material facts necessary in order to make the three statements made not misleading.” The First Circuit affirmed the district court’s judgment that rejected Petitioners’ First Amendment defense, held Petitioners liable ii under § 10(b) and Rule 10b-5, imposed a $160,000 penalty, and enjoined Petitioners for five years. The questions presented are: 1. Absent proof of fraud or deception, does the First Amendment protect a _ securities market participant from being punished and enjoined by the government for intentionally or recklessly making untrue statements or omissions of material fact while criticizing a publicly traded corporation? 2. Absent proof of fraud or deception, do untrue statements or omissions of material fact, even if made intentionally or recklessly, constitute a “manipulative or deceptive device or contrivance” punishable under § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5?