Advancing American Freedom led a coalition of 22 other amici in filing an amicus brief in Powell v. Securities and Exchange Commission, urging the Supreme Court to take up the case and recognize the limits of administrative agency power to control speech.
In this case, Petitioner is challenging the SEC’s requirement that those who settle enforcement actions agree not to speak about the case against them. This includes agreeing not to maintain their innocence in public, or even of allowing others to do so on their behalf.
For many targets of SEC enforcement, including those who are innocent, the process is the punishment. SEC enforcement actions, which are financially and emotionally taxing, can take years to resolve, can effectively end the defendant’s career for the duration of proceedings even if they are ultimately vindicated, and leave many targets feeling that they have little choice but to accept the terms of the agency’s settlement offer.
The First Amendment unambiguously defends the right to speak freely, which necessarily includes defending one’s integrity. The Supreme Court has long recognized that the government cannot circumvent the limits on its power by doing indirectly what it is prohibited from accomplishing directly. We urge the court to say so again.
“The government cannot use private consent to get around the Constitution’s limits on its power. The First Amendment right to free speech must be protected against crafty government action,” said AAF General Counsel J. Marc Wheat. “Lawfully, there can be no proxy war on constitutional rights. This Court should grant the petition for certiorari.”