Washington, D.C. —The New Civil Liberties Alliance (NCLA) today filed a petition asking the U.S. Commodity Futures Trading Commission (CFTC) to amend its controversial “Gag” Rule.  The CFTC requires settling parties to agree that they will never make any public statement that either directly or indirectly questions the accuracy of any allegations made in the CFTC’s complaint—even when the statement might be true.

NCLA contends that the CFTC lacked authority to issue the Gag Rule, that the Rule directly infringes upon the First Amendment rights of Americans, and that it hides the agency’s enforcement practices from public scrutiny. The Gag Rule’s terms also never expire, so its unconstitutionally mandated silence amounts to a life sentence for embattled defendants.

NCLA’s proposed amendment would keep in place the portion of the CFTC Gag Rule that permits CFTC to accept a consent order in which the defendant “neither admits nor denies” some or all allegations. It would also allow defendants in negotiations with the Commission to admit or deny specific allegations, while no longer forcing them to surrender their future free speech rights as the price for obtaining a settlement.

NCLA requests prompt consideration of this Petition to Amend the Gag Rule.

The government should never be in the business of silencing anyone, especially those whom it prosecutes.  Congress itself could not lawfully enact a gag statute requiring citizens who settle their cases with the government to permanently surrender their First Amendment rights.   The idea that a mere administrative agency has asserted this power requires prompt correction through a newly—and lawfully—enacted rule.

–Peggy Little, NCLA Senior Litigation Counsel


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.