Elon Musk has asked the Supreme Court to weigh in on whether the Securities and Exchange Commission violated the Tesla CEO’s free-speech rights when it required, as part of a 2018 settlement, that some of his social media posts be vetted in advance.
The petition appeared on the Supreme Court’s website Monday, after Musk’s lawyers told CNN on Thursday they had submitted the document. In the filing, attorneys for Musk alleged that the SEC deprived him of his First Amendment rights with the settlement, which was initially signed after Musk falsely claimed on Twitter that he would be taking Tesla private and that he had “funding secured” for the maneuver.
Tesla remains a publicly traded company today. Meanwhile, Musk now owns Twitter, which he has rebranded as X.
Beyond trying to recover the right to post more freely on social media, Musk’s petition is the latest legal challenge to federal executive authority; should the Supreme Court decide to hear the case and side with Musk, it could limit the SEC’s latitude to negotiate settlements with defendants accused of violating US securities laws.
The settlement had originally required Musk to get legal clearance for tweets that could contain material information relevant to Tesla or its shareholders; the agreement was later modified to cover “wide-ranging categories” of information instead, according to earlier court documents and the petition.
Now, after two lower courts upheld the settlement without directly addressing the issue of that provision’s constitutionality, Musk wants the Supreme Court to rule that the SEC has imposed a prior restraint on Musk in violation of the First Amendment, even though the lower courts held that Musk waived his First Amendment rights by signing the SEC agreement in the first place.
“The Constitution limits what the government may do, and any individual relinquishment of that right cannot grant the government a power denied to it by the Constitution,” said the petition, a copy of which was obtained by CNN.
The petition added: “The pre-approval provision at issue continues to cast an unconstitutional chill over Mr. Musk’s speech whenever he considers making public communications.”
Musk is battling the SEC on multiple fronts. In addition to his Supreme Court petition, he has resisted calls by the SEC to testify about his acquisition of Twitter, now known as X. The SEC has sought a court order that would compel him to testify in that matter.
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