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I thank Steve for his clarification below about his theory of why Trump might have a First Amendment defense in the New York case. As I understand it, Steve's argument can be understood as being about the phrase "another crime" in New York Penal Law 17.50:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Steve's argument is that the element of concealing the commission of "another crime" has to refer to an act that doesn't just satisfy the elements of a criminal statute, but that, interpreted independently, is a crime that satisfies independent First Amendment review. And so he argues that, if the jury identifies those elements of another criminal law as having been satisfied, that is not "another crime" if there would be a First Amendment defense to liability for those elements independently either under current law, or, if needed, on a better understanding of law as changed by the Supreme Court on appeal from Trump's conviction by overturning the Court's precedent.

This is an interesting argument, and I confess it is not what I thought Steve was arguing in his first post. So I certainly appreciate the clarification, and I apologize to Steve for the misunderstanding. One thought I have in response is that there's a pretty interesting interpretive question raised by Steve's argument. When the New York legislature uses the phrase "another crime" as part of an element, does "another crime" mean the elements of some other criminal law, or is "another crime" more of an independent constitutional concept meaning the elements of some other criminal law only to the extent that the elements could be a free-standing criminal offense without violating the Constitution?

I take it Steve believes the latter. That might be right. But I'm not entirely sure about that. Off the top of my head, I would think it's a question of statutory interpretation rather than the constitutional law of elements of crimes. Offenses have to satisfy the First Amendment as a whole, obviously, but I don't think there is a constitutional problem with a particular element of a crime involving First Amendment protected activities. For example, if a legislature says that it's a crime to punch someone during a protest, the fact that the protest is protected by the First Amendment doesn't mean that punching someone during a protest would be. If I'm right about that, then I would think this ends up an interesting question of statutory interpretation assuming that Steve is right about the First Amendment issue (either under current law or possible future law).

I poked around on Westlaw briefly to see if I could find New York cases on this question, but I didn't come across anything useful. It's a hard question to research, as the relevant terms end up bringing up a lot of unrelated cases. But thanks again to Steve for the clarification, and I'd be interested to know if others make more headway on the statutory question than I did.

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More on the New York Trump Case and the First Amendment - Reason

As several members of Columbias leadership prepared to testify before acongressional committee on anti-Semitism on April 17, pro-Palestinian protesters erected a Gaza Solidarity Encampment setting up tents to camp out on the South Lawn of Columbias campus and demanding the university divest from Israel. After protesters refused several warnings to vacate, administratorscalled in New York City police on April 18 to clear out the encampment, which they did, arresting more than 100 protesters. But the following morning, protesters were back, this timesetting up camp on the West Lawn.

Their idea caught on. Similar encampments sprouted up oncampusesacross the country in the following days. Unlike traditional protests, in which participants usually gather with only their voices and/or signs, these encampments have been marked by students setting up tents and other structures, often with the stated intent to stay 24/7 until their institutions meet certain demands.

Student protesters have since erected encampments atmore than 100 colleges and universities nationwide as well asfive universities in the United Kingdom,seven in Australia, andat least two in Canada. While many have been peaceful, there have beeninstances of violence andthousands of arrests as college administrators summon local police to their campuses to clear out encampments.

Which begs the question: If public universities must honor students First Amendment right to peaceful protest, and most private campuses promise to provide near-identical protections, can these institutions ban peaceful encampments?

In short, yes.

While campus encampments are expressive conduct no one doubts protesters are sending messages here thats not the end of the story.

Even in spaces where protest rights are at their maximum public sidewalks, public parks, and open outdoor areas of public campuses the government, including public universities, can still enforce reasonabletime, place, and manner restrictions on when, where, and how people protest.

Institutions must be able to regulate on-campus expressive activity to ensure it doesnt interfere with their primary educational and scholarly missions.

These rules typically include limits on amplified sound, erecting structures, the number of people who can safely gather in a particular space, and, yes, bans on camping.

Time, place, and manner rules must becontent neutral, meaning theyre applied evenly regardless of the substance of the speech. They must also be narrowly tailored to serve a significant government interest, leave open ample alternative channels for communication, and be applied evenhandedly, not discriminating against particular viewpoints.

Restrictions on encampments and building occupations generally satisfy the criteria of a legitimate time, place, and manner regulation. While free expression and open inquiry key elements for the transmission and advancement of knowledge are values of paramount importance to a university, institutionsmust be able to regulate on-campus expressive activity to ensure it doesnt interfere with their primary educational and scholarly missions.

As Israel/Gaza campus protests spread nationwide, FIRE answers questions about students expressive rights.

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Overnight encampments could createpublic safety risks andovertax campus security. They mayprevent other groups oncampus from using the space for a prolonged period. They couldobstruct access to campus facilities ordisrupt classes andother daily activities. All of these are legitimate reasons for universities to restrict encampments. Weve seen the result of these kinds of disruptions atColumbia,Tulane andUCLA, where the universities canceled classes or moved them online, or atRutgers, where the university postponed finals.

But universities power to regulate is not unlimited. Administrators cant target encampments because they dislike pro-Palestinian viewseven if some consider the expression anti-Semitic or otherwise offensive or hateful. Contrary to common misconceptions, that kind of speech is fully protected by the First Amendment unless italso constitutes conduct meeting the legal definition of a true threat, discriminatory harassment, incitement, or one of the few other, narrowly defined categories ofunprotected speech.

In practice, this means a protester on the quad, holding a sign reading Intifada or From the river to the sea is almost certainly engaging in protected speech. If that protester, however, hangs that sign on a tent theyve erected and which they refuse to vacate for days on end, the university can take steps to remove the encampment. Or, if that protester uses a sign (or anything else) to block a Jewish student from moving around campus, that could cross the line into discriminatory harassment and maybe even assault. In every situation, the facts are key to the First Amendment analysis.

Ultimately administrators may lawfully forbid encampments, overnight camping, and other similar actions on public and private campuses. But there are still plenty of ways to lawfully protest on campus. We encourage students to protest on issues theyre passionate about, within the bounds of laws that keep the free speech playing field safe and fair for everyone.

Check out FIREs guide to protest tolearn your rights so you are empowered to lawfully raise your voice.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech,submit your case to FIRE today. If youre faculty member at a public college or university, call theFaculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If youre a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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Campus encampment bans rarely violate the First Amendment. Here's why. - Foundation for Individual Rights and Expression

My co-blogger Orin Kerr argues that the NY Falsifying Business Records law, Section 175.10 includes two elements: 1) falsifying business records; and 2) doing so "when the intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." Orin hypothesizes that the part of the law mentioned in Part 2 of this test need not survive First Amendment scrutiny by itself. As a matter of statutory interpretation, Orin suggests that the second element of the Falsifying Business Records charge need only be an element of the Section 175.10 crime. And an element of the crime need not be constitutional itself.

This is not true. Donald Trump had a First Amendment right to spend money to win the 2016 presidential election by safeguarding his reputation, and Orin's construction of NY law would burden Trump's core political speech. NY cannot have a two element crime, both of which elements need to be proved, if one of the elements violates the First Amendment. Orin analogizes Trump's case to the case of someone who engages in battery during a political debate. Obviously, there is no right to engage in battery while engaging in First Amendment protected debate. But, there is a First Amendment right to spend money to protect your reputation and your family right before a presidential election by paying false accusers to stay silent. Doing so is not a crime.

Alvin Bragg says that the other crime that Trump falsified business records to conceal is that described by NY Election Law Section 17-152: "Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means *** shall be guilty of a misdemeanor." Paying hush money, like buying time for television and radio advertisements, is not an "unlawful means" of trying to win an election. The First Amendment completely protects what Trump is alleged to have done in 2016.

In fact, the person who has acted wrongly here is Alvin Bragg who for the first time in 235 years of American history has indicted a former president who is the Republican nominee for president in 2024 just to muddy him up. Bragg did this by splashing the irrelevant facts of the Stormy Daniels hush money allegation all over the front pages of the newspaper just as the 2024 presidential campaign gets kicked off. Republican nominee Trump cannot campaign during three vital weeks of the campaign season because Alvin Bragg has him locked up in a NY courtroom where the judge has subjected Trump to a gag order. Bragg and the judge trying Trump's NY State criminal case have committed constitutional torts for which they cannot be sued only because of our dumb prosecutorial and judicial immunity rules.

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Trump's Trial and the First Amendment - Reason

Court-imposed gag orders put limits on speech, so how are they legal under the First Amendment? We VERIFY what the Supreme Court has said on the issue.

Former President Trump has been fined $9,000 by a judge and declared to be in contempt of court in the New York criminal trial where hes accused of covering up hush money payments to a porn star.

The judge said Trump violated an order not to attack witnesses and other key participants in the trial when he repeatedly posted about them on Truth Social.

Such court-imposed orders are often called gag orders, and since they restrict what a person is allowed to say publicly, VERIFY reader Richard wondered how they can be legal given the First Amendments free speech protections.

Are gag orders constitutional?

The Supreme Court has found some gag orders are constitutional and others are not. The First Amendment right to free speech must be weighed with the Sixth Amendment right to a fair trial, on a case-by-case basis.

Gag orders arent common, but in certain cases theyre used to prevent potential witness tampering or attempting to unduly influence jurors through public media campaigns. Courts can assess whether gag orders are constitutional on a case-by-case basis.

The First Amendment to the U.S. Constitution guarantees the right to free speech, but the Sixth Amendment guarantees the right to a fair and speedy trial, and sometimes these two things can be at odds.

This is a classic confrontation of constitutional rights, said Ken Paulson, director of the Free Speech Center at Middle Tennessee State University.

The Supreme Court has ruled both that excessive public speech about a trial can result in it becoming unfair, making gag orders necessary, and that judges attempts to quash such speech can go too far and infringe on First Amendment rights.

There are several key cases that shape how the Supreme Court currently views the constitutionality of gag orders.

For example, in the 1950s a murder trial in Cleveland became a media circus. Personal information about witnesses and jurors was widely publicized, the judge told a reporter he thought the defendant was guilty, and jurors were allowed to make phone calls during deliberations.

The defendant was convicted, but in 1966 the U.S. Supreme Court overturned the conviction and found that the publicity resulted in an unfair trial.

The Supreme Court said then that it was within the rights of a judge in order to protect the Sixth Amendment rights of a defendant to tell those who are participating in the trial that they may not speak publicly, including to the press, about the case, said Paulson.

After that ruling, some judges began to clamp down on what could be publicly said during their trials, both by participants and the press. But that authority only goes so far.

In 1976, the Supreme Court struck down a gag order issued by a judge in Nebraska, in which he ordered local media not to report details of a murder trial. The justices ruled its almost always unconstitutional for a judge to tell the press what they can and cant publish, but they didnt restrict gag orders on trial participants.

[The Supreme Court] basically said: you can tell the people that the news media get their information from not to talk, but you can't tell the news media not to talk, said Paulson. Important principle. Survives to this day.

These two rulings helped establish the current parameters judges use when issuing gag orders: balancing free speech with ensuring a fair trial.

"With gag orders, it's actually a compromise. What it does is say: You're a member of this trial, you are either a defendant, you're a lawyer, you're an official. And in the interest of protecting the Sixth Amendment rights of this defendant, we're going to tell you to shut up for a while, said Paulson. On the other hand, what can I tell the press? You can write about anything you want to. You can write freely about the events in the courtroom, you can analyze the case, you can report whatever you'd like. So on one hand, the Sixth Amendment is protected, and on the other the First Amendment is protected. It's actually a pretty good balance.

In Trumps New York case, the judge has argued a gag order is necessary to prevent Trump from potentially intimidating witnesses and jurors.

Judges, generally speaking, have discretion to decide how to weigh the First and Sixth Amendment factors in these cases, but gag orders can be appealed to higher courts.

Trump appealed the New York gag order, but the appellate court rejected his claims. His lawyers have not said whether they will try to appeal again to a higher court.

It's rare for any decision along those lines to be overturned by an appellate court, and it would be extraordinarily rare [for] someone to be able to get the Supreme Court to hear it, said Paulson. So bottom line is: establishing a reasonable limit on the participants is almost always going to be upheld.

The VERIFY team works to separate fact from fiction so that you can understand what is true and false. Please consider subscribing to our daily newsletter, text alerts and our YouTube channel. You can also follow us on Snapchat, Instagram, Facebook and TikTok. Learn More

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Are gag orders constitutional? SCOTUS says it depends - VERIFYThis.com

Every day breathless articles appear in theNew York Times,and through-out the liberal media, about Donald Trump's allegedly lawless payment of hush money to help out his 2016 presidential campaign. In fact, Donald Trump has a First Amendment right to spend money, as does the Trump Organization, to further his electoral ambitions. InBuckley v. Valeo, the Supreme Court wrongly upheld expenditure limits on how much non-candidates could spend on elections, but it rightly held that wealthy individuals like Donald Trump could spend as much as they wanted to spend of their own money on election campaigns. And, they can spend their money on hush money payments, television or radio advertisements, or in any other legal way that would further their own campaigns or electoral ambitions.

To the extent that Trump was spending his own money in the 2016 presidential campaign, he had a First Amendment right to do that underBuckley v. Valeo. To the extent he was spending Trump organization money, Trump also had a First Amendment right to do that too because the campaign expenditure limits ofBuckley v. Valeo are now, and have always been, unconstitutional. Buckley v. Valeo should be overruled insofar as it upheld as constitutional any limits on spending money by anyone or by any organization to influence the outcome of an election.

The accounting entries of the hush money payments as "legal expenses" simply reflects the fact that Trump did not believe the allegations against him were true, or that he was protecting his family, or that he considered the payoffs to extortionate porn actresses and others as being settlements that did not confirm his guilt but that helped his 2016 campaign, which they did. The allegedly inaccurate accounting entries are at most misdemeanor offenses. The government in the NY State District Attorney's prosecution does not accuse Trump of embezzling funds from his organization or of fraud, nor could it do so.

Donald Trump should appeal any verdict against him in the NY State criminal case to the U.S. Supreme Court. He should assert his First Amendment rights underBuckley v. Valeo and to the extent that Buckley would allow a judgment against Trump to stand, Trump should ask that the entire edifice of campaign expenditure limits set up inBuckley v. Valeo be overruled. Legal experts know thatBuckley v. Valeo was "a derelict on the waters of the law" even before the recent appointments to the Supreme Court, and inTrump v. New York the U.S. Supreme Court should declareBuckley v. Valeo to be dead on arrival.

All that Trump has to do to win this farcical criminal case against him is to assert his First Amendment rights in every level of New York State's court system asking at every step along the way thatBuckley v. Valeobe overruled insofar as it forbade the expenditures in question. Obviously, no-one can spend money to bribe election officials or engage in other illegal conduct. But, nothing Trump has done is remotely illegal. Trump had a First Amendment right to make the hush money payments that he allegedly made in 2016.

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Donald Trump Has a First Amendment Right to Pay Hush Money to Support his Electoral Ambitions - Reason