Did the SEC Repeal Its Gag Rule to Avoid SCOTUS?

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth, Senior Litigation Counsel John Vecchione, and Senior Litigation Counsel Peggy Little discuss NCLA's reply brief in Powell v. SEC, the case challenging the SEC's decades-old gag rule.

Although the SEC recently rescinded the rule that prohibited settling defendants from publicly denying the agency's allegations, Peggy explains why the case is far from over. Thousands of existing gag orders remain in place, courts may still enforce them, and future administrations could reinstate similar restrictions at any time.

The discussion explores the legal doctrine of voluntary cessation, why agencies should not be able to evade judicial review by temporarily changing course, and why NCLA believes the Supreme Court should still hear the case. Peggy also highlights a surprising development: shortly after the SEC repealed its rule, the CFTC repealed its nearly identical gag rule as well.

Mark, John, and Peggy examine the broader implications for free speech, government accountability, and the First Amendment rights of Americans who settled with regulators but remain unable to publicly challenge the allegations against them.

With the case scheduled for Supreme Court conference on June 25, the episode offers an inside look at one of the most important First Amendment battles involving the administrative state.