Trump’s Trial and the First Amendment
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. Â 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 elect
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