Institute For Free Speech

Free Speech Arguments

Presented by the Institute for Free Speech

The Free Speech Arguments Podcast brings you oral arguments from important First Amendment free political speech cases across the country. Find us on Spotify and Apple Podcasts.

Episode 25: Powell, et al. v. United States Securities and Exchange Commission

Powell, et al. v. United States Securities and Exchange Commission, argued before Circuit Judges Sidney R. Thomas, Daniel A. Bress, and Ana de Alba in the U.S. Court of Appeals for the Ninth Circuit on February 13, 2025. Argued by Margaret A. Little of the New Civil Liberties Alliance (NCLA) (on behalf of Powell, et al.) and Archith Ramkumar (on behalf of the United States Securities and Exchange Commission).

Background of the case, from the Institute for Free Speech amicus brief:

For more than fifty years, the Securities and Exchange Commission (SEC) has used the threat of debilitatingly expensive litigation to coerce defendants into accepting a lifetime ban on speech. The SEC’s Gag Rule commands that, once defendants have settled, they can never publicly challenge—or even permit others to undermine—the truth of the SEC’s factual allegations, even if those allegations are indisputably false.

The SEC’s Gag Rule is a ban not just on speech but a ban on true political speech. It imposes an eternal, viewpoint-discriminatory prior restraint on speech critical of the SEC’s enforcement regime. For a country with “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” the unconstitutionality of this policy is clear. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Nonetheless, the SEC refuses to initiate a rulemaking to amend its Gag Rule.

Statement of Issues Presented, from the Petitioner’s Opening Brief:

  1. Whether the Commission acted contrary to constitutional right by refusing to amend 17 C.F.R. § 202.5(e) because the rule violates First Amendment and due process rights and is against public policy.
  2. Whether the Commission acted in excess of statutory authority and without observance of procedure required by law by refusing to amend 17 C.F.R. § 202.5(e), which improperly binds individuals outside of SEC.
  3. Whether the Commission acted arbitrarily and capriciously when it failed to provide a reasoned explanation for denying the petition to amend 17 C.F.R. § 202.5(e).

Resources:

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Episode 24: Henderson v. Springfield R-12 School District, argued en banc before the U.S. Court of Appeals for the Eighth Circuit on January 15, 2025.
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Episode 23: Free Speech Coalition, Inc. v. Paxton, argued before the Supreme Court of the United States on January 15, 2025.
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Episode 22: TikTok Inc. v. Merrick Garland, argued before the Supreme Court of the United States on January 10, 2025.
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Episode 21: Bristol Myers Squibb Co. v. Secretary United States Department of HHS, consolidated under AstraZeneca Pharmaceuticals LP et al v. Secretary United States Department of HHS, argued before the U.S. Court of Appeals for the Third Circuit on October 30, 2024.
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Episode 20: Moms for Liberty – Wilson County, TN, et al. v. Wilson County Board of Education, et al., argued before the U.S. Court of Appeals for the Sixth Circuit on October 29, 2024.
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Episode 19: Central Maine Power Company, et al. v. Maine Commission on Governmental Ethics and Election Practices, et al., argued before the U.S. Court of Appeals for the First Circuit on October 9, 2024.
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Episode 18: Little, et al. v. Llano County, et al., argued en banc before the U.S. Court of Appeals for the Fifth Circuit on September 24, 2024.
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Episode 17: TikTok Inc. v. Merrick Garland, argued before the U.S. Court of Appeals for the District of Columbia Circuit on September 16, 2024.
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Episode 16: NetChoice, LLC v. Bonta, argued before the U.S. Court of Appeals for the Ninth Circuit on July 17, 2024.
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Episode 15: X Corp. v. Bonta, argued before the U.S. Court of Appeals for the Ninth Circuit on July 17, 2024.
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Episode 14: The Imperial Sovereign Court of the State of Montana v. Knudsen, argued before the U.S. Court of Appeals for the Ninth Circuit on June 4, 2024.
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Episode 13: Can You Be Punished for Sharing Publicly Broadcast Court Hearings (Somberg v. McDonald), argued before the U.S. Court of Appeals for the Sixth Circuit on June 12, 2024.
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Episode 12: Florida’s STOP Woke Act in Higher Education (Pernell v. Lamb), argued before the U.S. Court of Appeals for the Eleventh Circuit on June 14, 2024.
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Episode 11: National Republican Senatorial Committee, et al. v. Federal Election Commission, et al., argued before the U.S. Court of Appeals for the Sixth Circuit sitting en banc on June 12, 2024. 
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Episode 10: U.S. v. Sittenfeld, argued before the U.S. Court of Appeals for the Sixth Circuit on May 9, 2024
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Episode 9: Diei v. Boyd, argued before the U.S. Court of Appeals for the Sixth Circuit on May 2, 2024.
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Episode 8: Spectrum WT v. Wendler, argued before the U.S. Court of Appeals for the Fifth Circuit on April 29, 2024.
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Episode 7: Joseph W. Fischer v. United States, argued before the Supreme Court of the United States on April 16, 2024.
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Episode 6: U.S. v. Mackey, argued before the United States Court of Appeals for the Second Circuit on April 5, 2024.
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Episode 5: Gilliam v. Gerregano, argued before the Supreme Court of Tennessee on April 3, 2024.
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Episode 4: Gonzalez v. Trevino, argued before the Supreme Court of the United States on March 20, 2024.
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Episode 3: Murthy v. Missouri, argued before the Supreme Court of the United States on March 18, 2024.
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Episode 2: NRA v. Vullo, argued before the Supreme Court of the United States on March 18, 2024.
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Episode 1: Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, argued before the Supreme Court of the United States on February 26, 2024
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