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Amicus Briefs

Musk v. SEC

NCLA filed an amicus curiae brief urging the Supreme Court to grant Elon Musk’s cert petition and strike down SEC’s “Gag Rule” censoring every American with whom it settles a regulatory enforcement case. For over 50 years, SEC has forbidden all enforcement targets from even truthfully criticizing their cases in public.

SEC is limiting Mr. Musk’s future speech and ability to speak publicly without preclearance or criticize the agency as a condition of settlement. This is a quintessential instance of prior restraint, which the Supreme Court has called “the most serious and the least tolerable infringement on First Amendment rights.” But SEC has no power to regulate the future speech of those with whom it settles! Musk’s case is emblematic of a much larger problem: imposing this restriction on all Americans who settle enforcement cases with SEC under its Gag Rule forces them to abandon their constitutional rights, a blatantly unconstitutional action. Supreme Court precedent forbids the government from conditioning anyone’s ability to receive a benefit on surrendering their constitutional rights.

The U.S. Court of Appeals for the Second Circuit decided to uphold the SEC gag order imposed on Musk, concluding that he voluntarily waived his First Amendment rights, or should have negotiated a different agreement. That decision conflicts with First Amendment precedents set by at least four other circuit courts and the Second Circuit itself. SEC consistently admits that its gag orders are non-negotiable. Musk and thousands of others censored under the Gag Rule had no choice.

In April 2024, the Supreme Court denied Mr. Musk’s petition for a writ of certiorari in this case.

Mark Chenoweth
President and Chief Legal Officer
Kara Rollins
Litigation Counsel
Margaret A. Little
Senior Litigation Counsel
NCLA FILINGS

Brief Amicus Curiae of the New Civil Liberties Alliance in Support of Petitioner

January 19, 2024 | Read More

Petition for a Writ of Certiorari

December 7, 2023 | Read More

PRESS RELEASES

NCLA Amicus Brief Asks Supreme Court to End SEC Gags on Targets of Settled Enforcement Cases

January 19, 2024 | Read More

IN THE MEDIA

What is the SEC so afraid of?

February 9, 2024

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