In a wide array of circumstances, state and federal courts have consistently recognized that S&P and other rating agencies are entitled to the same First Amendment protections as other financial publishers such as BusinessWeek and The Wall Street Journal.These decisions have been based on widespread judicial recognition that, at their core, rating agencies perform First Amendment functions by gathering information, analyzing it and disseminating opinions about it -- in the form of credit ratings and commentary -- to the general public. Indeed, in 2004 S&P disseminated its ratings, commentaries and industry reports through approximately 14,000 media releases, 4,000 commentaries, 15,000 analyses and updates, and 21,000 surveillance summaries. In addition, every year S&P publishes 51 issues of CreditWeek, a weekly print publication on fixed-income securities. All of S&P’s published rating actions are also made available to the public for free on its Web site, along with thousands of articles of fixed income-related commentary.
In the mortgage inquiry, the Justice Department has been asking about instances in which the company’s analysts wanted to award lower ratings on mortgage bonds but may have been overruled by other S.& P. business managers, according to the people with knowledge of the interviews. If the government finds enough evidence to support such a case, which is likely to be a civil case, it could undercut S.& P.’s longstanding claim that its analysts act independently from business concerns.