Few Americans know that when they settle a case with the SEC (or the CFTC which has a similar “rule”) that they will be forced to agree to a lifetime gag, a subject of much concern to Americans across the political and economic spectrum. Whether in small businesses or large, Americans charged by these powerful government agencies settle 98% of the cases brought against them, meaning that those defendants cannot question the strength or the merits of the government’s case against them—for life.

For nearly 50 years the SEC has settled cases in this manner even though the “rule” that purports to authorize the practice was never lawfully enacted in 1972. Join us for a litigation update forum with Peggy Little, Senior Litigation Counsel of New Civil Liberties Alliance (NCLA), to discuss whether this practice violates First Amendment doctrines forbidding prior restraint, content-based restrictions on speech, unconstitutional conditions, or suppresses rights of petition, rights of the public to hear truthful speech and due process. Does this silencing of truthful speech immunize the agencies from examination and criticism by the very people best situated to level such criticism? Congress itself could not lawfully enact such a rule, and the teleforum will explore why an administrative agency is exercising powers that Congress does not have.

Litigation and Regulatory Background and Disclosure: NCLA petitioned to amend the SEC’s gag rule in October of 2018, which led to a lively hearing before the Senate Banking Committee. NCLA similarly moved to amend the CFTC gag rule in July 2019. NCLA also represents Barry D. Romeril, former CFO of Xerox, who moved to set his gag aside in the Southern District.