The Stakes for Speech of Trump’s Civil Verdict
New York state bluntly informed President-elect Trump’s lawyers this week that it won’t agree to vacate the massive civil fraud judgment against him and his family. Although the state’s intransigence surely disappoints Mr. Trump and his family, it isn’t altogether regrettable. The case can now proceed, which means it will clarify our freedom of speech.
At stake for the Trumps is $364 million plus interest. That’s a lot to risk on a single decision—so it’s understandable that the Trumps asked Attorney General Letitia James to drop the case. The outcome, however, was predictable. Ms. James has all her political ambitions resting on this case, so she couldn’t concede. Almost dismissively, she had her deputy solicitor general, Judith Vale, wrote back that the state wouldn’t budge.
Ms. James brought the case against the Trumps for fraudulently misstating valuations of their properties in violation of New York’s Executive Law. That law (as I’ve written in these pages) defines fraud in terms of untruths without requiring proof of deceptive intent, negligence or harm. The statute doesn’t even require proof that the untrue information is material. The statute thus lets government target mere untruths.
Government, however, isn’t the arbiter of truth and can’t punish anyone for mere untruths. As Judge George Hay (1765-1830) put it, “It is obvious in itself, and it is admitted by all men, that freedom of speech means the power uncontrolled by law, of speaking either truth or falsehood at the discretion of each individual, provided no other individual be injured.” Under the Executive Law, the state needn’t show that any individual was injured.
The question is familiar from current doctrine. In U.S. v. Alvarez (2012), a case involving “stolen valor” or false claims of military honor, the Supreme Court explained that the Constitution “rejects the notion that false speech should be in a general category that is presumptively unprotected.” That largely disposes of the case against the Trumps. The only variation here is that this case involves business speech, but it’s not evident that should make any difference.
Even if New York has a compelling government interest in punishing some business speech that’s merely untrue—without evidence of culpability, particular damage or even materiality—it has no lawful interest in punishing all such speech. Put another way, the Executive Law’s sweeping assault on all business untruths isn’t narrowly tailored and thus fails the applicable test for constitutional review.
The Executive Law gives the New York attorney general a roving license to single out business speech she doesn’t like, including that of political opponents. It enables her to punish their dissenting views with draconian penalties. Therefore, the statute has long been a disgrace to the state.
Whatever you think about the Trumps, their case involves something more precious than all their money. It concerns our free speech. The judges should follow the First Amendment, Supreme Court precedent, and simple common sense by holding the Executive Law unconstitutional.
December 12, 2024
Originally Published in The Wall Street Journal