Amicus Brief Asking Court to Consider Lawyers' Free Speech Rights, in Eastman v. State Bar

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent I thought I'd pass along the amicus brief that I just filed yesterday on behalf of Prof. Rebecca Roiphe (an expert in the law governing lawyers), Prof. Nadine Strossen (a free speech scholar and former President of the ACLU), and myself, supporting the cert. petition in Eastman v. State Bar (the decision below is here). asserted

The brief seeks to explain to the Court why the underlying legal issues in this case are important and merit the Court's granting review. asserted

Like most other amicus briefs supporting petitions for review, it doesn't seek to argue about the truth or falsity of petitioner's statements: The Court generally grants review to resolve conflicts about what the right legal rule should be, not to resolve factual disputes. asserted

(You can also read another amicus brief supporting review, co-signed by our own Randy Barnett, among others.) asserted

The last ten years have seen many attempts to punish or compel professionals' speech in the service of broader ideological goals. asserted

This Court rejected two such attempts, in NIFLA v. Becerra, 585 U.S. 755 (2018), and in Chiles v. Salazar, 607 U.S. 627 (2026). asserted

It should likewise consider the constitutionality of the punishment in this case—a punishment that, if left unreviewed, portends still more such attempts. asserted

Petitioner John Eastman was disbarred in large part based on his public political statements. asserted

The State Bar concluded those statements were false, and therefore sanctionable. asserted

This raises an important and unresolved question of First Amendment law: When can lawyers be stripped of their livelihoods based on public political speech that is unrelated to any pending judicial proceeding and that is fully protected when said by ordinary Americans? asserted

That question is especially important because it can arise—and indeed is likely to arise—in many cases in the future. asserted

It certainly seems to be part of modern American politics. asserted

The mode of analysis in this case thus seems likely to proliferate in decisions both by deep blue state bars and deep red state bars. asserted

It seems likely to arise as to people involved in contentious disputes about federal elections, state candidate elections, state ballot measures, and ideological debates more broadly. asserted

In all these contexts, allegations that one's opponents are lying are par for the course: Indeed, another facet of human nature is to assume the worst motivations of one's adversaries and the best motivations of one's allies. asserted

In the past, state bars have sought to punish people they viewed as left-wing extremists who endangered the established constitutional order. asserted

This case is a reminder that the same approach is being revived today as to lawyers whom some state bars view as right-wing dangers. asserted

And, if the decision endures, it will likely be followed by many other such decisions. asserted

It is important that this Court make clear what rules govern this area of the law, so that they can be applied as evenhandedly as possible throughout the country. asserted

To be sure, this case also involves other allegations of impropriety, such as alleged false statements to courts, to Eastman's own client (President Trump) and his team, and to Vice President Pence and his team. asserted

This amicus brief does not opine on those matters. asserted

As many cases (see Part IV) have made clear asserted

, if a government sanction—whether a criminal sentence, civil liability, dismissal from government employment, or disbarment—rests even in part on constitutionally protected speech, it cannot stand unless the government can show that it would have reached the same result absent the protected speech. asserted

For this reason, this Court should grant certiorari to consider when lawyers can be disbarred for their public political speech. asserted

Argument [I.] Eastman's public statements would have been protected by the First Amendment if said by an ordinary citizen If John Eastman were not a lawyer, his public statements about the election would have been protected even if they were knowingly false. New York Times v. Sullivan expressly held that even deliberate lies about the government cannot be punished, especially on the theory that they damage people's confidence in the government or its processes (which would logically include elections): "For good reason, 'no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.'" uncertain

Yet the bar court justified the sanction of disbarment in part precisely because of what it saw as damage to the reputation of the government: Eastman's "false narrative," the court stated, "resulted in the undermining of our country's electoral process, reduced faith in election professionals, and lessened respect for the courts of this land." asserted

Likewise, in United States v. Alvarez, 567 U.S. 709 (2012), this Court held that a federal law that criminalized lying about military honors violated the First Amendment. asserted

And this was true for a sort of statement—claims that the speaker received a particular military medal—that was about as objectively verifiable and ideologically neutral as statements can be. uncertain

There was little risk that the Stolen Valor Act would be interpreted by prosecutors, judges, and jurors differently for Democrats than for Republicans, or that it would unduly chill people's speech on important political questions. asserted

Indeed, even the five Justices in Alvarez who did not sign on to the plurality opinion agreed that the government cannot be trusted with punishing supposedly false speech about broad "matters of public concern." asserted

Justice Alito's three-Justice dissent reasoned, [T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. asserted

The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth. asserted

Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. asserted

Today's accepted wisdom sometimes turns out to be mistaken. asserted

And in these contexts, "[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about 'the clearer perception and livelier impression of truth, produced by its collision with error.'" Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends. uncertain

Statements about history illustrate this point. asserted

If some false statements about historical events may be banned, how certain must it be that a statement is false before the ban may be upheld? uncertain

And who should make that calculation? … asserted

567 U.S. at 751-52 (paragraph break added) (Alito, J., dissenting). asserted

Justice Breyer's two-Justice concurrence agreed with the dissent that "there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech" and that therefore "[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny." asserted