미국 수정헌법 제1조 표현의 자유와 SEC의 화해 제도 - Powell v. SEC 판결과 ‘시인하지도 부인하지도 아니함’ 조건을 중심으로 - = The First Amendment and the SEC’s Settlement Regime - Focusing on Powell v. SEC and the “Neither Admit nor Deny” Condition -

다국어 초록 (Multilingual Abstract)

Since 1972, the U.S. Securities and Exchange Commission (SEC) has operated a settlement regime that features a “neither admit nor deny” condition under Rule 202.5(e). Beginning in the 2010s, however, critics argued that the accompanying “no-deny” condition, under which a respondent promises not to publicly deny the alleged violations, impermissibly burdens the First Amendment right to free speech. In August 2025, the Ninth Circuit in Powell v. SEC assessed Rule 202.5(e) not under traditional strict-scrutiny review for speech regulations, but under the Rumery test for waivers of constitutional rights: voluntariness, nexus, and public-interest balancing. The court reasoned that the waiver is voluntary when made by sophisticated parties with the assistance of counsel; that there is a close nexus between the no-deny obligation and the specific allegations resolved by the settlement; and that, if the respondent breaches the condition, the public interest in allowing the SEC—subject to judicial approval—to reopen enforcement proceedings may outweigh the respondent’s speech interests. While the Ninth Circuit rejected a facial challenge to Rule 202.5(e) and thus upheld the Rule as facially constitutional, it signaled the availability of as-applied challenges. Accordingly, any expansive reading of Powell v. SEC to justify broader or more enduring speech restrictions could raise distinct constitutional concerns.
If Korea were to introduce a settlement mechanism premised on a “neither admit nor deny” condition in the context of unfair securities trading, its compatibility with freedom of expression under Article 21 of the Constitution would be central. Should a no-deny clause be construed as prior censorship under Article 21(2), it would be per se unconstitutional; in that event, one might explore a limited doctrine of voluntary waiver of rights or a structure requiring judicial approval. Even if such clauses are not deemed prior censorship, they would be subject to rigorous proportionality review under Article 37(2). To enhance constitutional defensibility, the scope of any speech restriction should be precisely defined and minimized, time-limited, and cabined by explicit exceptions, with alternative remedial pathways designed to mitigate any chilling effects.