Washington, DC, Oct. 29, 2026 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance and its founder, Professor Philip Hamburger, have served an amicus curiae brief in New York v. Donald Trump, urging the New York State Court of Appeals to rule that New York Executive Law § 63.12 is unconstitutional. Section 63.12 allows courts to punish defendants simply for making incorrect business statements, regardless of whether any inaccuracy was intentional or whether anyone was harmed as a result. NCLA has long been prepared to challenge § 63.12, and urges the Court to correct this violation of First Amendment rights for the sake of all Americans.
As NCLA also argued in an amicus brief at an early stage of this case, New York’s Executive Law targets untruths, even immaterial untruths, that are expressed without bad intent, recklessness, or even negligence, and that do not cause concrete harm to any third party. This standard runs roughshod over the First Amendment, which, as the Supreme Court has explicitly and repeatedly held, protects false statements that cause no tangible harm.
Because § 63.12 allows prosecution for all business untruths, including unintentionally false statements, it discourages innocent people from taking the risk of speaking, thereby chilling truthful speech as well. The possibility of being punished with disgorgement under § 63.12 worsens this chilling effect. Progress depends on the freedom to challenge accepted ideas and explore new ones, and people sometimes get things wrong. Yet § 63.12 threatens punishment even for statements made in good faith that later prove inaccurate, regardless of whether anyone was harmed. That discourages the very exchange of ideas that drives progress—a danger that the First Amendment has long guarded against by protecting even speech that proves to be false.
Under the common law, Americans can only be found liable for fraud if they had an intent to deceive, a third party relied on the false speech to make a decision, and the third party was injured as a result. § 63.12 does not require any of these elements to punish someone for alleged fraud, and therefore violates the First Amendment.
NCLA released the following statements:
“I think many Americans may have unintentionally reported inaccurate facts or figures in the copious paperwork that pervades our everyday lives, despite best efforts to avoid such mistakes. Imagine if these innocent mistakes could be prosecuted and punished by the government, even if they caused no harm to anyone. Americans would be fearful of submitting any paperwork at all.”
— Caitlin M. Moyna, Senior Litigation Counsel, NCLA
“New York’s law erodes the First Amendment by permitting the government to punish people for speech that it deems inaccurate, even without proof of any actual harm or intent to deceive. By casting such a wide net, the law gives the attorney general enormous discretion to decide which alleged falsehoods to pursue—and whom to target. The resulting threat chills even truthful speech, leaving a fundamental constitutional right subject to the whims of those in power.”
— Casey Norman, Litigation Counsel, NCLA
“Punishing false statements without requiring proof of intent, justifiable reliance by a third party, and harm disregards both the common law and First Amendment free-speech rights. New York’s law must go.”
— Mark Chenoweth, President and Chief Legal Officer, 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.
Joe Martyak New Civil Liberties Alliance 703-403-1111 joe.martyak@ncla.legal