53 F. Supp. 2d 464 - Taucher v. Born’s Empirical Analysis

Citation profile

5 federal appellate · 4 district ·

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 13 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “[T]he defendants in this case have imposed a drastic prohibition on speech based on the mere possibility that the prohibited speech will be fraudulent., As applied by the CFTC, the CEA imposes a ban on the plaintiffs’ publishing of impersonal commodity futures trading advice unless they register with the CFTC. Moreover, the CFTC may, within its discretion, refuse to register any applicant for various reasons enumerated at 7 U.S.C. § 12a, including that the Commission believes the applicant has the “potential” to disregard the requirements of the CEA or has demonstrated “moral turpitude, or lack of honesty or financial responsibility.” See 7 U.S.C. §§ 12a(2), 12a(3); 7 C.F.R. Part 3, App. A. This is no different than the regulation in Lowe [v. SEC, 472 U.S. 181 , 105 S.Ct. 2557 , 86 L.Ed.2d 180 (1985)] in that it seeks to prevent individuals from publishing information based solely on a fear that someone may publish advice that is fraudulent or misleading, regardless or whether or not the information published actually is fraudulent or misleading. Such a prior restraint on fully protected speech cannot withstand the searching scrutiny of the First Amendment.”

   1 later decision quote this exact passage · from the concurrence
   e.g. 237 F. Supp. 2d 7 - Taucher v. Rainer

2. “) (describing a publisher's use of his trading system in his newsletter, book, trading course, and software program). 5 The publishers' argument was not that they were not covered by the statute, but instead that their various publications were protected under the First Amendment and that the registration requirement constituted a prior restraint on speech prohibited by that Amendment. After rejecting the CFTC's motion to dismiss and the plaintiffs' motion for summary judgment, the district court held a three-day bench trial. In a memorandum opinion and order issued the following month, the court entered judgment in favor of the plaintiffs, declaring the registration requirement unconstitutional as applied to the publishers. Id. at 482-83. 6 The district court first addressed whether Section 4m was a regulation of speech triggering First Amendment scrutiny or was merely a regulation of a profession — that of commodity trading advisor — subject to rational basis review. As the court explained, "[t]his is a question with which courts have struggled in the past in an effort to articulate a principled way of distinguishing between the two kinds of regulations.”

   1 later decision quote this exact passage · from the concurrence
   e.g. Taucher v. Brown-Hruska

3. “One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession. Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional’s speech is incidental to the conduct of the profession.... Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such.”

   1 later decision quote this exact passage · from the concurrence
   e.g. Tepeyac v. Montgomery County