One of the hardest things to swallow for people who are friendly toward Free Speech is that the people you dislike are entitled to it as much as you are. Sure, they may be wrong, even lie, whereas of course you would never do such a thing, and yet, within the normal legal parameters, they still get to speak without suffering any governmental penalty for it. That’s the position taken by three prawfs, Eugene Volokh, Rebecca Roiphe and Nadine Strossen, in an amicus brief in support of John Eastman in support of cert before the Supreme Court.

The last ten years have seen many attempts to punish or compel professionals’ speech in the service of broader ideological goals. 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). It should likewise consider the constitutionality of the punishment in this case—a punishment that, if left unreviewed, portends still more such attempts.

Petitioner John Eastman was disbarred in large part based on his public political statements. The State Bar concluded those statements were false, and therefore sanctionable. 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?

Professional speech has taken quite a battering over the past decade, ranging from the use of words that the left characterize as “hate speech” to political speech that falsely attacks opponents or defies all known facts. Indeed, the American Bar Association, a membership organization that lawyers occasionally joined in the olden days, crafted Rule 8.4(g) in the Model Rules of Professional Responsibility significantly curtailing lawyers’ speech lest anyone get offended at the expense of fidelity to the client and zealous representation. This trio of prawfs argues against it, at least here.

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. 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. 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.

In the past, state bars have sought to punish people they viewed as left-wing extremists who endangered the established constitutional order. See, e.g., James E. Moliterno, Politically Motivated Bar Discipline, 83 Wash. U. L.Q. 725 (2005). 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. And, if the decision endures, it will likely be followed by many other such decisions. 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.

But what, you ask, about things Eastman told courts, judges, his singular client? After all, it wasn’t just about appearances on Hannity, you know, making the public stupider by dint of his scholarly legal opinion that the election of 2020 was stolen or that Vice President Pence had the authority to throw out the Electoral College votes and replace them with Trump’s “alternate electors.”

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. This amicus brief does not opine on those matters. As many cases (see Part IV) have made clear, 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.

It may well be that Eastman would be disbarred without regard to anything he said outside the courtroom. It may well be that Eastman’s arguments in court were wrong and, well, dumb (with a “b”), but not disbarment worthy. To a significant extent, the harm Eastman did was to use his academic bona fides to add an air of legitimacy to specious arguments.

No matter how many times Trump calls Todd Blanche, Alina Habba or Jeanine Pirro “highly respected,” it’s not even close to the legitimacy John Eastman, former law professor and dean at Chapman University Fowler School of Law, brought to the table. There is little doubt that Eastman caused serious damage to the MAGA hivemind by supporting, if not creating, a foundation to believe that Trump should have walked away with the presidency in 2020.

Was that his right as a matter of free speech? Should he get another bite of the disbarment apple because it extended beyond his in-court statements to his public statements? Should he be disbarred anyway, and any error in considering out-of-court statements was de minimis and harmless?

*Tuesday Talk rules apply.