NCLA Amicus Brief in NY Case Against Trump Explains Why NY’s Executive Law Violates Free Speech
2024年8月3日 - 7:01AM
Today, the New Civil Liberties Alliance, together with its founder
Professor Philip Hamburger, filed an amicus curiae brief in New
York v. Donald Trump. NCLA and Prof. Hamburger ask the First
Appellate Department of the New York Supreme Court to hold
unconstitutional, on First Amendment grounds, a statute that New
York Attorney General Letitia James is using to prosecute former
President Trump for alleged fraud. Unlike common law fraud, New
York Executive Law § 63.12 allows courts to punish defendants—as
happened here—simply for making incorrect business statements,
regardless of whether any inaccuracy was intentional (i.e., no need
to prove mens rea) or whether anyone was harmed as a result. NCLA
urges the Court to correct this violation of free speech rights for
the sake of all Americans.
NCLA is a nonpartisan, nonprofit organization
that has successfully sued the Trump and Biden administrations, but
we understand that all Americans—including controversial
figures—must equally enjoy the freedom of speech. For that reason,
NCLA had § 63.12 in our sights long before the current controversy
emerged, as it has been abused before. NY’s Executive Law targets
untruths, even immaterial untruths, that are made without bad
intent, recklessness, or negligence and do not cause concrete harm
to an identifiable third party. This standard runs roughshod over
the First Amendment, which, as the Supreme Court has explicitly and
repeatedly held, protects mere untruths that do not tangibly harm
particular people.
Much more is at stake here than former President
Trump’s allegedly inflated real estate valuations. Because §
63.12 allows prosecution for all business untruths, including
unintentionally false statements, it discourages innocent people
from taking the risk of speaking and thus chills truthful speech as
well. Progress depends on our willingness to experiment in
speech—to try out conclusions that may turn out to be
incorrect—making § 63.12’s threat to innocent words later shown to
be untrue profoundly dangerous. For this reason, the First
Amendment has long protected false speech.
Regrettably, when former President Trump’s
lawyers raised elements of this First Amendment argument to the
trial court in this case, pointing out that § 63.12 permits
punishments for false statements absent fraudulent intent or
alleged damages, the court declared their arguments “frivolous,”
and it imposed thousands of dollars in sanctions. Penalizing
Trump’s attorneys for presenting what is not only a meritorious
argument, but should be a winning one, compounded the
constitutional problems with this case, violating the Fourteenth
Amendment by denying the Defendants due process of law.
NCLA released the following statements:
“No doubt, truth in public matters is important.
But ‘truth’ can only be arrived at through debate, experimentation
with ideas, challenges to assertions made, and argument. ‘Truth’ is
not imposed from on high. For this reason, it is important to
protect all sorts of speech, even what turns out, on further
examination, to be untrue. And while the State has a right to
punish untrue speech that causes injury (such as falsely shouting
‘fire’ in a crowded theater and causing a panic), the First
Amendment does not allow it to punish untrue speech that causes no
harm. The First Department should reverse the judgment
below.”— Greg Dolin, Senior Litigation Counsel,
NCLA
“As NCLA has said in other contexts, the
government is not and cannot be the arbiter of truth in deciding
whether or not speech deserves protection. The First Amendment
safeguards even bluster and puffery, and it does not permit New
York’s Attorney General to single out harmless and immaterial false
speech for special prosecution.”— Mark Chenoweth,
President, NCLA
For more information visit the amicus
page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights
group founded by prominent legal scholar Philip Hamburger to
protect constitutional freedoms from violations by the
Administrative State. NCLA’s public-interest litigation and other
pro bono advocacy strive to tame the unlawful power of state and
federal agencies and to foster a new civil liberties movement that
will help restore Americans’ fundamental rights.
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Judy Pino
New Civil Liberties Alliance
202-869-5218
judy.pino@ncla.legal