Your Speech or Your Life: The New York Attorney General's Camouflaged Assault on the First Amendment

Abstract

Vested with vast investigatory and prosecutorial authority, New York’s Attorney General is one of the most powerful law enforcement officials in the nation, increasingly acting not only as an enforcer, but also as a de facto regulator. Among the AG’s powers is that she may settle cases on the state’s behalf by entering into agreements called “Assurances of Discontinuance” (AODs) with targets of state investigations—which for decades has been how the AG’s Office has resolved the vast majority of its cases. And for several years now, the AG has been inserting in most AODs a provision forbidding the settling party from “tak[ing] any action” or “mak[ing] … any public statement denying” the AOD’s “propriety … or expressing the view … that th[e] [AOD] is without factual basis.” This provision is apparently inspired by virtually identical clauses that the SEC and CFTC have been including in their settlements for decades. The tension between such “gag” provisions and the American free-speech tradition is difficult to ignore. Yet their potential unconstitutionality has thus far flown under the radar, with no court or commentator even acknowledging the First-Amendment concerns raised by the New York AG’s settlement practice. This Article takes on that issue, arguing that these speech-suppressant provisions’ inclusion in AODs flagrantly violates the freedom of speech. The gag clauses cannot properly be regarded as voluntary waivers of First-Amendment rights, since settling parties are required as a condition of settlement to surrender their right to publicly criticize the AG’s allegations against them—and those who refuse to do so face reprisal in the form of state prosecution or investigation. The Constitution, generally speaking, forbids public officials from using such tactics to strong-arm citizens into giving up fundamental freedoms. In fact, in at least some instances, the AG’s gag clauses amount to prior restraints on speech, a form of speech regulation considered particularly constitutionally problematic. Finally, in addition to their coercive nature, AODs’ speech-suppressant provisions raise First-Amendment concerns for other reasons—namely, that they restrict the communication of ideas and information that the public has a strong interest in hearing. This Article’s conclusions also carry important implications for the constitutionality of the SEC’s and CFTC’s speech-suppressant practices, as well as for any other official attempt to exact surrenders of constitutional rights through settlement agreements.