Decades of censorship erased in weeks, as Colorado and the feds rush to preempt court rulings

Colorado imposed a loyalty oath on lawyers as a condition of access to the state's court system, pledging they would not assist Immigration and Customs Enforcement. Some federal agencies required defendants to accept gag orders as a condition of civil settlements, pledging they would not question the government's case, no matter how weak they thought it.

These speech mandates, some going back more than 50 years, have come crashing down in recent weeks as The Centennial State opts against further cementing its reputation as a First Amendment flouter and the second Trump administration seeks to distinguish itself from its predecessors – including Trump I – as a paragon of prosecutorial propriety.

Buried in immigrant-protection legislation (HB 26-1276) signed into law last week is a provision that nixes SB 25-276's requirement, only implemented two months ago, that lawyers swear "under penalty of perjury" they won't use "nonpublic" information from the court system to help federal immigration enforcement.

The now-rescinded law had provoked outrage from some lawyers who faced the prompt when they tried to log in to the e-filing system, as well as legal scrutiny from watchdogs including Judicial Watch and the Foundation for Individual Rights and Expression, which told Just the News it had been "gearing up to sue" Colorado if it didn't reverse course.

The U.S. House Judiciary Committee was also investigating the state for the loyalty oath, among broader clashes between the GOP-controlled panel and Democrat-run state over ICE cooperation and sanctuary policies.

The Commodities Futures Trading Commission followed two weeks behind the Securities and Exchange Commission in eliminating its "no-deny" settlement rule, an outlier in the federal government, giving the same rationale as its partner in investor-fraud prosecution: The rule made the agency look bad and may have even hurt investors.

"The timing of these actions suggests the Administration may be trying to avoid Supreme Court review," said the New Civil Liberties Alliance, which petitioned CFTC seven years ago to eliminate its rule of nearly three decades and petitioned SCOTUS to review the even older SEC policy, which the SEC scrapped shortly before a SCOTUS deadline to reply.

It is "absolutely essential" the high court strike down such gag orders, since the revised policies "may not bind future administrations, courts that have approved settlements, or even future Commissions in this administration," NCLA said. "Policies that can be made and withdrawn at an agency’s whim," without public comment, "fail to provide certainty."

SCOTUS will next consider whether to grant the petition June 25.

Governor doesn't acknowledge signing repeal legislation

Colorado was facing the prospect of another embarrassing and expensive legal battle over its speech mandates when it backtracked. It's 0-3 at SCOTUS in less than a decade for compelling professionals to participate in same-sex weddings – settling with one for $1.5 million – and affirm gender confusion in minors, most recently this spring.

George Washington University law professor Jonathan Turley dubbed Colorado "arguably the most anti-free speech state in the union" thanks to efforts like the loyalty oath. "The irony is that the state has proved a bonanza for free speech with spectacular legal failures that reaffirmed rather than restricted the First Amendment."

Repeatedly losing in court is also a bad look for Democrat Gov. Jared Polis. The same day he repealed the loyalty oath, Polis cited "legal risks" in vetoing legislation that would let Colorado residents sue ICE for violating their civil rights during civil immigration enforcement.

Polis has "cut a rare profile" ahead of Democratic presidential primaries for his "willingness to occasionally buck party orthodoxy, pro-business appearance compared to many Democrats, and his efforts do not seem overly pugnacious or partisan when tussling with Trump," the Fort Collins Coloradoan reported in noting his albeit long shot prospects.

The new law removes private attorneys as a category prohibited from sharing information from the state court system with federal immigration enforcement, and subject to prosecution for violating their oath not to cooperate.

Polis didn't mention the loyalty oath when he signed SB 25-276 a year ago, and he doesn't appear to have mentioned signing SB 26-1276, which repealed the private attorney category, among dozens of signed bills that appear in his press releases this month. Unlike listed bills, SB 26-1276 doesn't appear by name in a search on the governor's website.

The Colorado Judicial Department notified users of Colorado Courts E-Filing Access on Thursday, the day Polis signed the legislation, that it has removed SB 25-276's certification requirement in compliance with the new law, "which now expressly excludes CCE users from the certification requirement [...] Registered users do not need to take any action."

The e-filing system, which cannot be circumvented with paper filing, started prompting lawyers in late March to take the oath. It first drew wide notice thanks to religious liberty lawyer Ian Speir, who protested that he couldn't represent clients "without saluting The Resistance." 

House Judiciary's April 13 letter to State Court Administrator Steven Vasconcello cited Speir's post, calling the certification requirement "a form of compelled speech requiring an attorney to attest to a partisan political statement as a condition of practicing law."

It asked Vasconcello how many complaints the Judicial Branch had received since Polis signed the law a year ago and for documents and communications among staff that refer or relate to implementation.

Represented by FIRE, Speir credited Colorado with backing down from a "First Amendment fight they weren’t going to win." His counsel, Greg Greubel, thanked Polis and lawmakers for "acting quickly to resolve this issue" but questioned why the state even tried.

Colorado's law unconstitutionally let attorneys "share information in a way that hampers federal immigration enforcement" but not in a way that helps them, and gave them "no clear red line" for when their speech assists or cooperates with enforcement, FIRE said. It could have legally imposed narrow content-neutral rules to stop "misuse of personal data."

Social media muddles 'line between public and private statements'

The CFTC's explanation for eliminating its gag orders on settling defendants mirrors that of the SEC, though Chairman Michel Selig alluded only vaguely to the SEC, saying the change is "consistent with regulators throughout the government."

Rescinding no-deny "gives the Commission more flexibility in settling enforcement actions" and "potentially expedites the return of money to injured investors," it said. The public interest in blocking denials "may be minimal" and create the "incorrect impression that the Commission is trying to shield itself from criticism."

CFTC will stop enforcing "existing no-deny provisions that have already been entered," but the change doesn't affect its discretion to "settle with defendants who decline to admit facts or liability or its discretion to negotiate for admissions as part of a settlement."

The commission's June 8 Federal Register rescission notice explains why the policy hasn't worked in practice. One reason is the use of social media has muddled the "line between public and private statements," since speakers may be addressing "a private, self-selected community" yet their comments are "still visible to dozens." It also refers to NCLA's 2019 petition.

The government is still defending the constitutionality of the SEC's rescinded policy, reminding SCOTUS in a May 26 brief that no one on the 9th U.S. Circuit Court of Appeals requested a vote to reconsider a three-judge panel's decision upholding the policy.

With no policy in place, "this case is moot and, at a minimum, lacks prospective importance," Solicitor General John Sauer wrote.

For the more than 50 years it was in place, "it appears that the Commission never reopened proceedings to enforce no-deny provisions in its settlement agreements," and SCOTUS already denied a petition "raising the same issue and asserting the same circuit conflict" when it turned down a previous NCLA case, the brief says.

The timing of the rescission "tells the Court everything it needs to know about the certworthiness of the question presented," NCLA wrote in a reply brief.

"Agencies do not vacate longstanding rules the moment litigation arrives at this Court (and the Solicitor General assumes the lead), unless the government is gravely concerned about the likelihood of this Court’s review and its ability to defend those rules on the merits," it said.

"The only thing that can prevent the Gag Rule from springing back to life as suddenly as it was rescinded is a ruling by this Court that an agency may not leverage its enforcement authority to silence critics through mandatory gags coerced as a condition of avoiding the crippling financial and reputational harm of defending an enforcement action," NCLA said.

Since the government still backs the policy's constitutionality, thousands of individuals subject to gag orders "remain chilled," the reply brief says. 

The high court should at least vacate the 9th Circuit ruling, NCLA argues. "The SEC’s self-serving request to keep that decision on the books – after having unilaterally attempted to insulate it from this Court’s review – is unjustified. "