In addition to being an entrepreneur, futurist, subway inventor, lover and the richest man in the world, Tesla, et. al., chief Elon Musk fancies himself a free-speech warrior. It’s why he’s so generously put up so much of his wealth to turn Twitter into even more of a cesspool than it already is, and it’s why he’s so (in his own mind) valiantly (if not entirely seriously) fighting against that agreement he signed with the Securities and Exchange Commission. You know, the one that imposed exactly the kind of restrictions on his tweets that he’s railing against at Twitter.
All that being said, maybe he’s not totally wrong? And it’s not us saying that: It might be the Supreme Court.
The new case concerns Barry D. Romeril, a former Xerox executive whom the S.E.C. accused of participating in a scheme to mislead investors. He settled the case in 2003 without admitting or denying the accusations; paid more than $5 million, much of it reimbursed by Xerox; and agreed to the agency’s take-it-or-leave-it condition that he stay forever silent about any shortcomings in the government’s case…. A unanimous three-judge panel of the court ruled for the agency. “A defendant who is insistent on retaining the right to publicly deny the allegations against him has the right to litigate and defend against the charges,” Judge Denny Chin wrote for the panel. “Romeril elected not to litigate….”
“To impose a speech ban as an element of a settlement is, in my view, unconstitutional,” [Romeril’s lawyer Floyd Abrams] said. “The idea that the government is demanding an enforceable promise not to speak ill of it is really troubling.”
The Supreme Court will decide whether to hear the case, Romeril v. Securities and Exchange Commission, No. 21-1284, in the coming months. The justices grant review in very few cases, but the question this one presents may intrigue them, as lower courts have adopted differing approaches to so-called gag orders in settlement agreements with the government.
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