There is no merit in the SEC’s argument that a Rule 60(b) motion cannot be used to set aside an unconstitutional gag order. Indeed, the SEC itself recently argued that “the proper vehicle is review of the consent judgment[] before the court[] that entered [it],” citing this very case, SEC v. Allaire.1 Second Circuit precedent unequivocally holds that a judgment imposing a prior restraint on speech is “void” under 60(b)(4), see Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963), just as the Supreme Court holds that an “injunction, so far as it imposes prior restraint on speech and publication, constitutes an impermissible restraint on First Amendment rights” and “must be vacated.” Org. for a Better Austin v. Keefe, 402 U.S. 415, 418–20 (1971).

The propriety of challenging the validity of the consent order gag though a Rule 60(b)(4) motion for relief from judgment is underscored by the collateral bar rule prohibiting a party from challenging “a district court’s order by violating it. Instead, he must move to vacate or modify the order, or seek relief in this Court.” United States v. Cutler, 58 F.3d 825, 832 (2d Cir. 1995). SEC has cited one non-binding case to the contrary, U.S. v. Berke, 170 F.3d 882 (9th Cir. 1999), and even there the court reserved decision on whether the gag could be enforced.

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