Trump's New York Fraud Case Raises First Amendment Concerns

Can New York punish someone for an inaccurate business statement even when no one was deceived, no one relied on it, and no one suffered a financial loss?

That's the First Amendment issue NCLA is raising in the New York civil fraud case against President Donald Trump.

NCLA has submitted an amicus brief to New York's highest court challenging the constitutionality of Executive Law § 63(12), a sweeping statute that NCLA argues allows the state attorney general to punish mere inaccuracies without proving the traditional elements of fraud, including intent to deceive, reliance, and harm.

On this episode of Unwritten Law, Mark Chenoweth and John Vecchione welcome NCLA Senior Litigation Counsel Caitlin Moyna, who authored the brief, to explain why the law poses a threat to free speech far beyond this particular dispute.

They discuss the enormous financial penalty originally imposed against Trump, the intermediate appellate court's decision to strike down that monetary award, and the danger of giving government officials broad discretion to target individuals and businesses.

NCLA's concern isn't limited to Trump. A law that gives prosecutors the power to punish harmless mistakes can threaten anyone's freedom of speech.

The case is headed to oral argument before the New York Court of Appeals on January 5.