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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.

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More on the New York Trump Case and the First Amendment - Reason

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As several members of Columbias leadership prepared to testify before acongressional committee on anti-Semitism on April 17, pro-Palestinian protesters erected a Gaza Solidarity Encampment setting up tents to camp out on the South Lawn of Columbias campus and demanding the university divest from Israel. After protesters refused several warnings to vacate, administratorscalled in New York City police on April 18 to clear out the encampment, which they did, arresting more than 100 protesters. But the following morning, protesters were back, this timesetting up camp on the West Lawn.

Their idea caught on. Similar encampments sprouted up oncampusesacross the country in the following days. Unlike traditional protests, in which participants usually gather with only their voices and/or signs, these encampments have been marked by students setting up tents and other structures, often with the stated intent to stay 24/7 until their institutions meet certain demands.

Student protesters have since erected encampments atmore than 100 colleges and universities nationwide as well asfive universities in the United Kingdom,seven in Australia, andat least two in Canada. While many have been peaceful, there have beeninstances of violence andthousands of arrests as college administrators summon local police to their campuses to clear out encampments.

Which begs the question: If public universities must honor students First Amendment right to peaceful protest, and most private campuses promise to provide near-identical protections, can these institutions ban peaceful encampments?

In short, yes.

While campus encampments are expressive conduct no one doubts protesters are sending messages here thats not the end of the story.

Even in spaces where protest rights are at their maximum public sidewalks, public parks, and open outdoor areas of public campuses the government, including public universities, can still enforce reasonabletime, place, and manner restrictions on when, where, and how people protest.

Institutions must be able to regulate on-campus expressive activity to ensure it doesnt interfere with their primary educational and scholarly missions.

These rules typically include limits on amplified sound, erecting structures, the number of people who can safely gather in a particular space, and, yes, bans on camping.

Time, place, and manner rules must becontent neutral, meaning theyre applied evenly regardless of the substance of the speech. They must also be narrowly tailored to serve a significant government interest, leave open ample alternative channels for communication, and be applied evenhandedly, not discriminating against particular viewpoints.

Restrictions on encampments and building occupations generally satisfy the criteria of a legitimate time, place, and manner regulation. While free expression and open inquiry key elements for the transmission and advancement of knowledge are values of paramount importance to a university, institutionsmust be able to regulate on-campus expressive activity to ensure it doesnt interfere with their primary educational and scholarly missions.

As Israel/Gaza campus protests spread nationwide, FIRE answers questions about students expressive rights.

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Overnight encampments could createpublic safety risks andovertax campus security. They mayprevent other groups oncampus from using the space for a prolonged period. They couldobstruct access to campus facilities ordisrupt classes andother daily activities. All of these are legitimate reasons for universities to restrict encampments. Weve seen the result of these kinds of disruptions atColumbia,Tulane andUCLA, where the universities canceled classes or moved them online, or atRutgers, where the university postponed finals.

But universities power to regulate is not unlimited. Administrators cant target encampments because they dislike pro-Palestinian viewseven if some consider the expression anti-Semitic or otherwise offensive or hateful. Contrary to common misconceptions, that kind of speech is fully protected by the First Amendment unless italso constitutes conduct meeting the legal definition of a true threat, discriminatory harassment, incitement, or one of the few other, narrowly defined categories ofunprotected speech.

In practice, this means a protester on the quad, holding a sign reading Intifada or From the river to the sea is almost certainly engaging in protected speech. If that protester, however, hangs that sign on a tent theyve erected and which they refuse to vacate for days on end, the university can take steps to remove the encampment. Or, if that protester uses a sign (or anything else) to block a Jewish student from moving around campus, that could cross the line into discriminatory harassment and maybe even assault. In every situation, the facts are key to the First Amendment analysis.

Ultimately administrators may lawfully forbid encampments, overnight camping, and other similar actions on public and private campuses. But there are still plenty of ways to lawfully protest on campus. We encourage students to protest on issues theyre passionate about, within the bounds of laws that keep the free speech playing field safe and fair for everyone.

Check out FIREs guide to protest tolearn your rights so you are empowered to lawfully raise your voice.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech,submit your case to FIRE today. If youre faculty member at a public college or university, call theFaculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If youre a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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Campus encampment bans rarely violate the First Amendment. Here's why. - Foundation for Individual Rights and Expression

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Campus chaos vindicates the American system and the First Amendment  The Hill

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Campus chaos vindicates the American system and the First Amendment - The Hill

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Students were primed for First Amendment talk. This Pierce County district backed out  Tacoma News Tribune

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Students were primed for First Amendment talk. This Pierce County district backed out - Tacoma News Tribune

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Can Texas public universities remove protesters from campus? First Amendment experts explain - Austin American-Statesman

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