The Cato Institute is challenging the constitutionality of the SEC’s Gag Regulation. Cato alleges that the SEC “uses its extraordinary leverage in civil litigation to extract from settling defendants a promise to never tell their side of the story.”
Cato wants to write a book and host a public discussion with and about individuals who “have settled enforcement actions with the SEC” and who “would like to speak publicly” about the Commission’s allegations. Cato cannot engage in this speech, however, because the settling defendants “are prohibited from [speaking publicly] because of gag orders” that they agreed to pursuant to the Gag Regulation.
The Institute filed its amicus brief in support of Cato. A panel of the D.C. Circuit Court of Appeals ruled against Cato, arguing that they did not have a “redressable injury.” Our brief explains why this ruling was in error, as a matter of law and fact.