Gary Zhou 
Tesla CEO Elon Musk once again pushed for a term of his 2018 consent decree with the SEC to be thrown out. The 2018 settlement with the agency, which came after a settlement in relation to the CEO’s “funding secured” Tweet, required a company lawyer to pre-approve Musk’s Twitter communication. The “government-imposed muzzle” should be ended, in Musk’s opinion.
In September 2018, the SEC announced the terms of its settlement with Musk from claims of securities laws violations, after the CEO announced he was considering taking Tesla private at $420 per share. The terms of Musk’s consent decree with the SEC required him to step down as Tesla’s chairman, two new members to be elected to the company’s board, a $20 million penalty from both Musk and Tesla, and a final condition that “will establish a new committee of independent directors and put in place additional controls and procedures to oversee Musk’s communications.”
Musk has consistently pushed back against the latter-most term, in particular. In a 60 Minutes interview in 2019, Musk said that the SEC’s term that someone must oversee his Tweets is a violation of the First Amendment.
Musk and Tesla attorneys are now pushing for the provision to be thrown out once again. The company filed to have the “government-imposed muzzle” removed from the terms of the settlement, arguing that it is “contrary to the American principles of free speech and open debate,” Reuters said the filing stated.
This is far from the first time Musk and his lawyers have attempted to have the decree thrown out. In April, after requesting the agreement be abolished, U.S. District Judge Lewis Liman refused to throw out the decree because Musk entered the terms of the decree “knowingly and willingly.”
However, Musk’s attorneys argue that the SEC’s overwatch of his actions has become more invasive:
“Under the shadow of the consent decree, the SEC has increasingly surveilled, policed, and attempted to curb Mr. Musk’s protected speech that does not touch upon the federal securities laws. Any objective served by the pre-approval provision has been served.”
Musk maintained the Tweet was truthful and that he had funding secured for the deal. U.S. District Judge Edward Chen, who heard arguments in the suit in March, was skeptical. “It seems to me it’s not factually very complicated,” Judge Chen said. In fact, “funding had not been secured,” he added.
