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.

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.

I have been increasingly aware of, and disturbed by, instances of local police declining the requests of universities to help the universities–which generally do not have law enforcement officers capable of dealing with hundreds of people resisting arrest–arrest  protestors and remove their protest encampments. I was preparing to write a blog post about this, but Hans Bader beat me to it. So rather than reinvent the wheel, with permission, below is a shortened version of Hans' post:

You have a right to free speech, but that doesn't give you a First Amendment right to camp out on my lawn with protest signs. That's trespassing. But government officials sometimes allow trespassing when they sympathize with the trespasser's viewpoint. Baltimore, Philadelphia, and Washington, DC have refused to remove progressive anti-Israel protesters camping out at private universities — Johns Hopkins University, the University of Pennsylvania, and George Washington University.

My co-blogger Orin Kerr says that President Donald Trump's First Amendment rights are not being violated by the NY State prosecution of him because Trump is being prosecuted only for falsifying business records. But, the indictment of Trump specifically says that Trump had falsified business records "to conceal another crime". That other crime is presumably a violation of federal or NY State election law, and the First Amendment protects Trump's right to make hush money payments for purposes of winning the 2016 presidential election. The 34 counts in the indictment, in any event, are for misdemeanor offenses as to which the statute of limitations has run.

Shockingly, in this first ever prosecution of a former president, Alvin Bragg, the NY State District Attorney, is coy about what felony is being concealed by the allegedly falsified expenses. The reason he is being coy is because there is no other felony that Trump was concealing. And, if there were one it would be a state or federal campaign finance law, which would violate Trump's First Amendment rights.

All that Donald Trump has to do to get any verdict against him overturned is to insist that the predicate felony, which NY alleges he was concealing is not a crime under the Constitution because the First Amendment trumps campaign finance law (pun intended). To the extent that Buckley v. Valeo sustains any such campaign finance violation, Trump should ask the U.S. Supreme Court on his ultimate appeal to overrule Buckley v. Valeo.

I have mixed views about New York's prosecution of Donald Trump—if you look at all the crimes Trump has committed, the ones charged in New York seem comparatively minor—but I do not agree with my co-blogger Steve Calabresi's claim that Trump has a First Amendment defense to the charges.

First off, Trump was not charged with paying hush money.  As I understand the indictment, Trump is charged with 34 counts of keeping false business records.  It's not the payments to keep Daniels quiet that is the claimed crime; it's the keeping of false records needed to keep quiet that he had paid off Daniels to keep quiet.  (To put a new spin on an old saying: it's not the coverup, it's the covering-up of the coverup.) Whether Trump would have a First Amendment right to pay Daniels to keep quiet is irrelevant, as that was not charged as a crime.

To say that Trump has a First Amendment defense, then, I think you need to take the astonishing view that crimes somehow related to spending that helps a political candidate are protected by the First Amendment.  Even acknowledging that Steve's vision is not intended to be rooted in current law, but rather in a vision of what he thinks First Amendment should be read to be, I don't think I see how there could be a First Amendment right to do that.  As far as I know, there is no First Amendment right to commit election-related crimes. Wanting to help a candidate for office doesn't give people a right to cook the books.

Every day breathless articles appear in the New 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. In Buckley 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 under Buckley 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 of Buckley 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 under Buckley 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 in Buckley v. Valeo be overruled.  Legal experts know that Buckley v. Valeo was "a derelict on the waters of the law" even before the recent appointments to the Supreme Court, and in Trump v. New York the U.S. Supreme Court should declare Buckley 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 that Buckley v. Valeo be 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.

I have a piece up at National Review Online about the Antisemitism Awareness Act. As described in my article, the most important feature of the act is that it codifies administrative guidance that began in the Bush Administration holding that Jews are protecting from ethnic discrimination by Title VI of the 1964 Civil Rights Act. Before 2003, the Department of Education treated Jews an exclusively religious group not covered by the Act.

The controversial part of the Act is that it codifies the International Holocaust Remembrance Alliance's (IHRA) working definition of antisemitism in the context of determining discriminatory intent for related allegedly discriminatory actions in Title VI enforcement. That definition gives examples of statements that, depending on the context, could be antisemitic. Some of those examples relate to Israel, and one of those discusses the use of anti-Jewish tropes with origins in Christian polemic used against Israel. This had led to hysterical and wildly inaccurate claims that the law criminalizes criticism of Israel, or will somehow lead to making Christianity illegal. I explain in the peace why these claims are nonsense. I note that It's hard to imagine anyone sensible arguing that the statement, "Of course Israel is massacring Palestinians, that's exactly what Christ-Killers would do" can't be evidence of discriminatory intent for related action.

More sober critics, like co-blogger Eugene V. earlier today, worry about the chilling effect it will have on anti-Israel speech given that hostile environment cases sometimes rest in part on speech that would otherwise be constitutionally protected. I respond so such critics as follows:

That is indeed a real concern. But that's a problem with hostile-environment law more generally. With or without official adoption of the IHRA definition, university officials already have an incentive to clamp down on all sorts of speech that could be deemed hostile to various groups. In practice, though, they mostly use Title VI as an excuse to try to censor speech that offends woke sensibilities.

That, in fact, is the broader reason wokesters are hostile to AAA. Currently, there is a double standard, with antisemitic speech that might contribute to a hostile environment treated with much more equanimity than speech hostile to other groups. This is illegal discrimination against Jewish students, and is essential to the entire DEI edifice. If the AAA and other new laws incentivize universities to treat members of all protected classes (including white students discriminated against based on race) equally, than the whole ideological structure of DEI as we know it, which depends on preferences for favored groups, collapses.

Returning to the more hysterical critics, I note that

the Department of Education has been using the IHRA definition of antisemitism for Title VI enforcement since 2018. As president, Donald Trump also issued an executive order making the IHRA definition applicable government-wide. Over 30 states and dozens of localities have adopted the IHRA definition. Criticism of Israel is still legal, as is, of course, reading and preaching the New Testament. Those who claim that the limited adoption of this definition for evidentiary purposes in Title VI proceedings is a big step on the road to authoritarian dystopia are displaying a combination of ignorance and mendacity, often with a significant dollop of anti-Jewish conspiracy theory.

I never say in the piece whether I like the IHRA definition, or whether I think it should be codified for Title VI (or other) purposes. But there is so much misinformation floating around that I thought it was important to clarify the very low stakes of this bill, given that it does not change the status quo.

The letter, which as of this writing has over 200 hundred signatories, starts off like this:

Social and Personality Psychologists on Student Protests for Justice in Palestine
We are a group of faculty from various demographic, religious, and ethnic backgrounds who are trained in the methods and practice of social and personality psychology. Although there are no doubt many topics on which we disagree, we are united in this call to listen to, engage with, and protect our students as they protest the mass killings of Palestinian civilians—which the International Court of Justice of the United Nations determined "could amount to genocide."

The words in quotations do not appear in the ICJ's opinion. The closest the Court comes to saying anything like that is to say that "at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the (Genocide) Convention." The Court, however, made no finding as to whether South Africa's allegations were true, and the Genocide Convention bars actions that are not "genocide," such as incitement to genocide. The only time the words "amount to genocide" without the "could" appear in the opinion is in the court's summary of South Africa's allegations.

It says a lot about the decline of intellectual integrity in academia that so many are willing to sign a statement without due diligence to ensure that what they are signing is accurate, and that whomever drafted the letter either did not bother to check that the letter was accurate, or knew it was inaccurate but did not care.