Musk takes SEC 'Twitter sitter' consent decree appeal to US Supreme Court
- Reference: 1702071426
- News link: https://www.theregister.co.uk/2023/12/08/musk_takes_sec_twitter_sitter/
- Source link:
Filed [1]yesterday [PDF], Musk's legal team repeats the [2]same general argument it has made since Musk and the SEC signed an agreement in 2019 that required a lawyer to vet tweets from the Tesla supremo that could have an material effect on the company or its investors.
Namely, that the consent decree amounts to prior restraint on Musk's [3]First Amendment free speech rights and is a violation of the unconstitutional conditions [4]doctrine , which "forbids burdening the Constitution's enumerated rights by coercively withholding benefits from those who exercise them," or so Musk's lawyers say in their petition, citing a [5]prior Supreme Court decision.
[6]
Referring to Musk's multiple [7]attempts to get out of the consent decree, his lawyers note in their petition for a writ of certiorari that previous denials of the request have largely come down to the fact that Musk signed the consent decree of his own accord. Thus, or so multiple courts and the SEC itself have said, there is no infringement on Musk's free speech rights.
[8]
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The most recent decision to that end came from the US Court of Appeals for the Second Circuit, which in August [10]denied [PDF] Musk's request for an appeal of a lower court's determination that the consent decree was legitimate. It's that August decision which is currently being appealed to the Supreme Court.
"We see no evidence to support Musk's contention that the SEC has used the consent decree to conduct bad faith, harassing investigations of his protected speech," a panel of judges from the 2nd Circuit Appeals Court said earlier this year.
[11]
"Musk's argument that the consent decree is effectively a 'prior restraint' on his speech does not change this conclusion," the judges added, as "parties entering into consent decrees may voluntarily waive their First Amendment and other rights."
Musk's lawyers have also argued that, because he was found not guilty of securities fraud by a California jury over [12]the tweet that kicked off this entire debacle - "Am considering taking Tesla private at $420. Funding secured." - that he shouldn't be beholden to the SEC anymore.
The SEC declined to comment on Musk's appeal.
Stop! In the name of Musk
Whether the Supreme Court will decide differently than multiple courts before it is unknown - as is whether they'll even take the case to begin with.
[13]According to the US court system, writs of certiorari, which when granted demand that a lower court send records up to the Supremes for review, are rarely heard - less than 150 of the 7,000 writ requests the Supreme Court gets each year pass muster.
[14]Musk in hot water with SEC for failure to comply with subpoena
[15]Musk is in contempt of court, screams SEC after Tesla boss brags about car production rates
[16]You were supposed to be watching him. Letters from SEC claim Tesla breached deal to police Elon Musk's tweets
[17]SEC probes Musk for not properly disclosing Twitter stake
"The Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value," the US courts system website states.
Naturally, Musk's lawyers argue that there is a matter of exceptional importance to their case: "whether the government can insulate its demands that settling defendants waive constitutional rights from judicial scrutiny."
[18]
Speaking to CNBC, which first reported Musk's Supreme Court appeal, Columbia Law School professor Eric Talley [19]said the appeal was a "swing for the fences" that, with the resources at his disposal, makes "spinning the judicial roulette wheel" feasible. Whether it's likely to succeed is another matter altogether.
The unconstitutional conditions doctrine, Talley said, is a slippery one. "This case is more like the government agreeing to forebear from pursuing charges against someone in exchange for their agreement to cooperate with the terms of the settlement," Talley told CNBC. "That's not general doling out of benefits," he added.
In order for the writ to be granted and the Supreme Court to hear the case, four of the nine justices must agree to accept the petition. It's unclear when a vote on the matter may be held. ®
Get our [20]Tech Resources
[1] https://regmedia.co.uk/2023/12/08/musk-v-sec-writ-petition.pdf
[2] https://www.theregister.com/2022/06/15/musk_tweet_court/
[3] https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/#:~:text=The%20First%20Amendment%20provides%20that,the%20right%20to%20bear%20arms.
[4] https://constitution.congress.gov/browse/essay/amdt1-7-13-1/ALDE_00000771/
[5] https://supreme.justia.com/cases/federal/us/570/595/
[6] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2ZXOgHVJR4tTuIkjx2iv7VgAAAFc&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[7] https://www.theregister.com/2023/02/24/musk_tesla_consent_decree_sec/
[8] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZXOgHVJR4tTuIkjx2iv7VgAAAFc&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[9] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33ZXOgHVJR4tTuIkjx2iv7VgAAAFc&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[10] https://regmedia.co.uk/2023/12/08/appeals-court-musk-sec-denial.pdf
[11] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZXOgHVJR4tTuIkjx2iv7VgAAAFc&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[12] https://www.theregister.com/2023/02/04/musk_tesla_civil_fraud_trial_verdict/
[13] https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1
[14] https://www.theregister.com/2023/10/06/musk_in_hot_water_with/
[15] https://www.theregister.com/2019/02/26/musk_contempt_court_sec/
[16] https://www.theregister.com/2021/06/02/sec_to_tesla_were_not/
[17] https://www.theregister.com/2022/05/27/the_sec_is_probing_elon/
[18] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33ZXOgHVJR4tTuIkjx2iv7VgAAAFc&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[19] https://www.cnbc.com/2023/12/07/elon-musk-asks-scotus-to-undo-sec-twitter-sitter-agreement.html
[20] https://whitepapers.theregister.com/
I suggest the SEC are more creative. Release him from the consent decree, but only so long as he has "I am a pillock" branded on this forehead with red hot iron, and without anaesthetic.
In reversed lettering, of course, because everybody else already knows it.
How about the SEC just proposes that he can say whatever he wants, but his Xitter handle has to be made so that he's the only one who can view his Xcretions. Every single Xcresion he's ever made since the beginning of time goes poof from everyone else's view. After all, there's nothing in the first amendment that says anyone else has to listen to/read/be aware of, your speech, just that the government can't stop you from saying it. Requiring you to shout into the void does not violate the first amendment in any way.
What's the problem?
In the unlikely event the Supremes elect to hear the case, and if they find a prior restraint, what's the problem. Musk then gets to tweet whatever he wishes. And the SEC presumably is then free to whack him with appropriate fines if they judge his tweets to be attempts to manipulate the financial markets.
Sounds to me like Elon is fighting tooth and nail for the opportunity to screw himself. Have I got this wrong somehow?
A trifle; or "...a mere bag of shells", as Inspector Clouseau would say.
"...but surely, your Honors, you don't expect me to now keep my word about agreeing to something to which I've already agreed. Earlier. And in writing."
Same old story
Elon Musk, time after time, shows how much he believes he should be above law. This is not possible on this planet which may explain why he is so keen to migrate to Mars.
Re: Same old story
The most unfortunate part of that whole Mars pipe dream is that he doesn't want to go personally
To Paraphrase Gorge Carlin
"Fuck Xitler! Fuck 'em in the asshole with a big rubber dick! Then break it off and beat him with the rest of it! I hope Xitler dies! I do! I hope he goddamn dies! I hope he dies lonely and forgotten behind the baseboard of a soiled bathroom, with his hand in Theil's pants... No wonder no one in the world takes us seriously, we waste valuable article space talking about the ravings of a deluded idiot!"
He's not being required to do anything that every other CEO of a publicly traded company doesn't have to do. So, as far as I'm concerned, if not committing securities fraud is so onerous for him, he should resign immediately as CEO of Tesla and any other officer position he may hold at any other publicly traded company. Then he is free to say whatever he wants, because he won't be able to affect policy at the company any longer. By remaining as the CEO of a publicly traded company he is expected to not say or do things that could roil the market in some way. So, what will his tiny dick energy ego decide is more important I wonder. His money or his "freedumb".
Providing they're sure he'll pay them they'll keep submitting the cases. Why not? Money for old rope - that's the rope he tied himself up with to settle with the SEC in the first place. Perhaps the SEC should offer to set aside the agreement in return for whatever sanctions they'd have handed out instead.