In the coming months, the United States Supreme Court will decide whether to hear a case in which the Securities and Exchange Commission (SEC), as a condition of settlement of a matter in which a person was charged with misleading investors, required him to refrain from making any public statement admitting or denying the charges. The person agreed but later sued the agency wanting to be released from the condition. The request was denied. The U.S. Court of Appeals for the Second Circuit subsequently ruled in favor of the SEC. Some constitutional experts disagree with decision on the ground that the right of free speech under the First Amendment cannot be waived.

There is nothing in the Constitution that would bar the waiver of freedom of speech. The only prohibition in the First  Amendment is of Congress making any law prohibiting the exercise of free speech. Indeed, there are other sacred constitutional guarantees that can be waived. For example, the Fifth Amendment protects against compulsory self-incrimination, and yet a person can agree to give a confession in a criminal case if properly warned of the right to remain silent.

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