Amicus Curiae Submission on the SEC’s No-Admit, No Deny Rule

Congress imposed a presumption of disclosure on the government. The SEC has inverted that framework
by imposing a presumption of silence on private citizens. Since 1972, the Securities and Exchange Commission has required that every settlement includes the defendant’s permanent promise of silence. Under Rule 202.5(e), settling defendants are forbidden from ever publicly denying or indirectly casting doubt on the SEC’s account of its own cases. 17 C.F.R. § 202.5(e) (1972). Settling defendants may not speak to journalists, write op-eds, or contradict the Commission’s version of events in any way, even if they are speaking truthfully or speaking to proceedings that concluded years ago. Rule 202.5(e), “the gag rule,” serves not only as a restraint on speech but brings about an opacity to government that is contrary to public policy, making this a compelling case for certiorari.