First Amendment Scholars Urge Supreme Court To Review & Invalidate SEC “Gag Rule”

ALF, serving as counsel of record, has filed a petition-stage amicus brief on behalf of six prominent Constitutional Law & First Amendment legal scholars urging the Court to review and invalidate the Securities and Exchange Commission’s longstanding “Gag Rule” policy, 17 C.F.R. § 202.5(e).  The SEC Gag Rule requires any defendant signing a judicial or administrative civil enforcement consent agreement with the SEC to refrain forever from denying the allegations in the SEC’s complaint or even creating the impression that the alleged unlawful conduct did not occur.

The amicus brief was authored primarily by Rodney A. Smolla (Dean and Professor of Law at Widener University’s Delaware Law School, and as of July 1, 2022, President of Vermont Law School).  Professor Smolla is joined on the brief by co-amici Clay Calvert (Professor of Law, Brechner Eminent Scholar in Mass Communication, and Director of the Marion B. Brechner First Amendment Project, at the University of Florida); Alan E. Garfield (Distinguished Professor of Law at the Delaware Law School of Widener University); Burt Neuborne (Norman Dorsen Professor of Civil Liberties Emeritus and Founding Legal Director of the Brennan Center for Justice, at NYU School of Law); Nadine Strossen (John Marshall Harlan II Professor of Law Emerita at New York Law School and past national President of the American Civil Liberties Union); and Eugene Volokh (Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law).

Issue Areas:

Individual Liberty

Read the Amicus Brief:
Question(s) Presented:

Whether the Securities and Exchange Commission violates the First Amendment by imposing a requirement that any party with whom it settles must agree to a lifelong prior restraint barring any statement, however truthful and whenever and however expressed, that even suggests that any allegation in an SEC Complaint is insupportable.


Additional Background:

Petitioner’s counsel, the New Civil Liberties Alliance, have produced a short, first-person video that highlights the case’s background and the free-speech constraints that the SEC’s gag policy has placed upon Petitioner Barry Romeril.

ALF’s Amicus Brief:

The legal scholars’ amicus brief argues that the Court should grant review “to address First Amendment issues that have enormous practical importance to the operation of the American legal system—issues that long have vexed and confused lower courts—and for which this Court’s guidance is critically needed.”  The brief explains that the SEC Gag Rule “reflects the urgent and more far-reaching need for clarity concerning the extent to which government agencies may coerce silence from a citizen as a condition imposed to resolve a dispute between the government and the citizen.”

More specifically, the brief argues that (i) the SEC Gag Rule is a presumptively invalid prior restraint; (ii) the SEC Gag Rule is a presumptively unconstitutional exercise in content and viewpoint discrimination; (iii) the SEC Gag Rule is an unconstitutional condition; and (iv) the SEC Gag Rule is paternalistic and violates the First Amendment rights of the public to receive information.

Status:

The petition for a writ of certiorari was docketed on March 21, 2022 and is pending.

Contact:

Lawrence S. Ebner, Executive Vice President & General Counsel, Atlantic Legal Foundation

Date Originally Posted: April 22, 2022

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