Eight Years of NCLA Litigation Brings End to SEC and CFTC’s Gag Rules that Silenced Americans
Thomas J. Powell, et al. v. Securities and Exchange Commission
Washington, D.C., June 29, 2026 (GLOBE NEWSWIRE) -- After eight years of relentless effort, the New Civil Liberties Alliance has gotten rid of the unconstitutional Gag Rules issued by the Securities and Exchange Commission and Commodity Futures Trading Commission. These Gag Rules forbade every American who settled a regulatory enforcement case with SEC or CFTC from even truthfully criticizing their cases in public for the rest of their lives, violating the First Amendment. As soon as NCLA’s Powell, et al. v. Securities and Exchange Commission case exposing such gags as blatantly illegal reached the U.S. Supreme Court this spring, SEC rescinded its Gag Rule and CFTC did the same soon afterward. While the Supreme Court declined to grant certiorari and hear Powell on the merits today, NCLA and our co-counsel—former U.S. Solicitor General Greg Garre and his Latham & Watkins colleagues—are thrilled to have eliminated these unjust policies.
Enacted without notice and comment in 1972, SEC’s Gag Rule has silenced NCLA clients Thomas Powell, Cassandra Toroian, Gary Pryor, Joseph Collins, Michelle Silverstein, Rex Scates, Ray Lucia, Barry Romeril, Christopher Novinger, and countless other people nationwide. It has also suppressed news gathering by NCLA clients Reason and The Cape Gazette, which sought to report on SEC settlements. The First Amendment explicitly forbids Congress from abridging Americans’ freedom of speech or press. The Gag Rule was not narrowly tailored, served no legitimate or compelling government interest, restricted speech based on content and viewpoint, and restrained future speech, all blatant violations of the Constitution. Criticizing this policy, SEC Commissioner Hester Peirce said it was designed to improperly hide agency actions from the public.
NCLA originally petitioned SEC to end its Gag Rule in October 2018 and filed a petition to eliminate CFTC’s Gag Rule (from 1999) the next year. We then led multiple lawsuits against SEC’s Gag Rule, including a previous Supreme Court bid in the Romeril case. These efforts led to a growing chorus of judicial opinions denouncing the Gag. Respected circuit judges Edith Jones and Kyle Duncan noted: “A more effective prior restraint is hard to imagine” and called on courts to fully reconsider this policy. SDNY Judge Ronnie Abrams brilliantly laid out every unconstitutional aspect of the Rule. Accordingly, NCLA renewed the petition to SEC in 2023. SEC denied the petition in January 2024 over a powerful dissent by Commissioner Peirce. NCLA then launched the Powell lawsuit to correct that error, advancing the case through the U.S. Court of Appeals for the Ninth Circuit to the U.S. Supreme Court. When CFTC announced this month that it was rescinding its Gag Rule, the agency referenced NCLA’s 2019 petition. SEC and CFTC have both said they will not enforce existing gag orders.
Even so, NCLA’s work is not yet done. Thousands of Americans—including several NCLA clients in Powell—remain under court orders implementing gags. They still risk punishment if those orders are enforced against their speech. NCLA will continue working to eliminate this threat from district courts, from a future SEC or CFTC, and from any other Administrative State agency that dares to violate Americans’ precious First Amendment rights.
NCLA released the following statements:
“SEC conferred the victory laurels upon Petitioners when it rescinded its embarrassingly authoritarian Gag Rule—rather than suffer the indignity of allowing the Court to do it for them. By these repeals, both SEC and CFTC admitted their Rules were outliers imposed by no other federal agency and that they suppressed speech critical of the government—whose protection is at the First Amendment’s core. NCLA celebrates our Petitioners’ unambiguous victory. It is a fitting reminder as we celebrate our Nation’s 250th birthday of the crucial role the Declaration of Independence served in recognizing our unalienable rights to freedom of speech and free press.”
— Peggy Little, Senior Litigation Counsel, NCLA
“Kudos to Peggy Little, who led NCLA’s fight against the SEC and CFTC Gag Rules for the past eight years. Due mainly to her unstinting efforts, those agencies have now waved the white flag. Today’s cert denial means the Supreme Court apparently deems the case moot after SEC’s surrender. NCLA takes pride in our long-fought victory over the unconstitutional gag rules, and we stand ready to combat any efforts to enforce or restore them.”
— 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
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