Washington, D.C., June 09, 2026 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance filed its reply brief today insisting the Supreme Court should hear Powell, et al. v. Securities and Exchange Commission and rule that SEC’s 50-year Gag Rule is unconstitutional. The Gag Rule forbade every American who settled a regulatory enforcement case with SEC from even truthfully criticizing their cases in public for the rest of their lives. SEC rescinded the Gag Rule last month just as this case threatened to expose the Rule’s blatant unconstitutionality. NCLA and co-counsel former U.S. Solicitor General Greg Garre and his colleagues at Latham & Watkins demonstrate that the agency’s arguments in response in Powell fail, and a Supreme Court ruling remains necessary to put this issue to bed.
SEC’s actions entail a classic case of voluntary cessation of a government policy adopted on the eve of the Supreme Court’s decision on certiorari to evade review by the Court. In fact, the agency still argues the Gag Rule was constitutional, and the government cannot give any meaningful assurance that a future SEC will not revive it. Rules that can be rescinded overnight can be reinstated just as quickly. So, the Court should take the case and hold that the Rule imposes an unconstitutional condition on settlement with the agency.
SEC’s statement that it will not enforce existing gags may not bind future commissions that take a different view, nor does it bind the courts. Ten consecutive administrations—from both parties—embraced the Rule for 50 years before SEC’s sudden change of heart. To keep the Rule from suddenly returning, the Supreme Court must rule an agency cannot use its enforcement authority to silence critics through mandatory, coercively imposed gags.
Thousands of Americans—including several NCLA clients in this case—remain under court orders implementing Gag Rule-era gags. They still risk punishment if those orders are enforced against their speech, a threat the Supreme Court needs to eliminate.
NCLA released the following statements:
“SEC’s claim that its eleventh-hour repeal of its Gag Rule ‘moots’ this case should be rejected as a transparent ploy to evade review. Its simultaneous insistence on the correctness of the lower court decisions that have upheld the Rule only underscores that the agency wishes to retain absolute power to silence speech critical of the SEC. That Janus-faced position both chills speech of those now under a gag and preserves potential revival of the policy. The Supreme Court should hear the case and put an end to the chilling of core political speech.”
— Peggy Little, Senior Litigation Counsel, NCLA
“The Supreme Court should take this opportunity to make clear that agencies cannot force Americans to abandon their First Amendment right to criticize the government as the price of freeing them from the crippling economic and reputational burdens of agency enforcement actions.”
— Greg Garre, Former Solicitor General of the U.S., Partner at Latham & Watkins,
and Counsel of Record in Powell, et al. v. SEC
“NCLA’s hard-fought, eight-year battle against SEC’s odious Gag Rule has already achieved a rescission of the Rule. However, that rescission does not stop SEC from using a gag in particular cases, and it does nothing to lift the gag from our clients. SEC’s saying it will not enforce old gags for now will not stop a future SEC from doing so. The unconstitutional Gag Rule deserves a dirt nap, and the Supreme Court should give it one.”
— Mark Chenoweth, President and Chief Legal Officer, NCLA
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
Joe Martyak New Civil Liberties Alliance 703-403-1111 joe.martyak@ncla.legal
