Stephen Rohde, Devil's Advocate:  Why is a prominent ethics professor defending John Eastman on First Amendment grounds? — First Amendment News 385.1

What follows is Part 2 of an examination of the California State Bar disciplinary charges against John Eastman and the First Amendment claims he has raised in his defense. I invited Stephen Rohde, a constitutional scholar, writer, and retired civil rights lawyer, to examine the disciplinary charges and Mr. Eastman’s free speech responses to them. Rohde’s analysis is set out below. Read the first installment here.  — rklc.

Even before his ethics trial began this month in California, John Eastman, the lawyer who advised Donald Trump on how to block the election of Joe Biden, suffered a setback in his argument that the First Amendment shields him from disbarment. 

Eastman had designated Rebecca Roiphe, a law professor and director of the Institute for Professional Ethics at New York Law School, as an expert witness to testify to the limitations imposed by the First Amendment on disciplinary proceedings against lawyers.  

But last May, California State Bar Court Judge Yvette D. Roland excluded Roiphe. The judge found that: 

Roiphe’s testimony will be of no benefit to the court — the court will determine if Respondent’s statements warrant First Amendment Protection. Indeed, whether Respondent made false statements and if those statements were made knowingly or with reckless disregard of the truth, are issues that fall within the court’s purview.

Eastman’s First Amendment expert would have faced an uphill battle

Roiphe is a prominent law professor. She earned a J.D., cum laude, at Harvard Law School, and clerked for a judge on the United States Court of Appeals for the First Circuit. She also completed a Ph.D. in American history at the University of Chicago. Additionally, she was an assistant district attorney in the securities fraud unit at the New York County District Attorney's office. In 2007 she joined the faculty of the New York Law School, where she is the Joseph Solomon Distinguished Professor of Law. She specializes in ethics and the history of the legal profession and serves as co-dean for faculty scholarship.

Despite her impressive credentials, she would have faced an uphill battle had she been allowed to testify, given the appalling facts in Eastman’s case. And then, there is the prevailing law at the intersection of legal ethics and the First Amendment (Her deposition was taken by counsel for the California State Bar, but as of this writing, the transcript has not been made available to First Amendment News). 

Still, from a First Amendment standpoint, it’s valuable to imagine what she would have said on the stand (Roiphe declined to be interviewed for this article). As an expert witness, she would have inevitably been confronted with her prior scholarly writings. Indeed, she may well have come to Eastman’s attention because of the thought-provoking 2022 law review article, “Lawyers and the Lies They Tell,” she co-authored with Fordham law professor Bruce A. Green. In that law review article, Roiphe and Green essentially argue that:

(i) Given weighty First Amendment interests, political lies are generally entitled to the highest protection, and any regulation of political lies must be subjected to strict scrutiny (see United States v. Alvarez (2012).

(ii) A lawyer’s lies are not categorically different from political lies and can be regulated only if doing so directly furthers a compelling government interest related to law practice, such as preserving the administration of justice. 

(iii)  The rules of professional conduct do not treat all lies or falsehoods the same, and some things that might loosely be labeled lies really are not.

Professorial challenge: Likely key concessions

But on her testimony, Roiphe would have had to concede at least eight key principles citing her own words: 

1. That the First Amendment does not afford an absolute First Amendment defense for any and all lies uttered by an attorney in the representation of a client (“This is not to say that all political lies are protected”). 
2. That some “lies, such as incitement, defamation, obscenity, fraud, or lies to government officials, cause such concrete harm that courts have long allowed government proscription.”
3. That “courts can regulate extra-judicial speech if it interferes with the administration of justice or undermines the fiduciary relationship with a client or other obligations to third parties in an ongoing legal matter.” 
4. That “lawyers’ speech can be restricted more than the speech of others only when doing so would further an interest related to the administration of justice.” 
5. That “courts have substantial authority to regulate lawyers’ legal representations and other professional work as lawyers ... and by enforcing these rules in disciplinary processes.” 
6. That “lawyers may be disciplined, including suspension or disbarment, for violating court-adopted rules of professional conduct that put a premium on lawyers’ truthfulness, candor, and honesty.” 
7. That beyond lying, rules of professional conduct cover “failure to correct false statements, and other nondisclosures; recklessly false statements; statements that are misleading though not necessarily literally false; and misleading conduct.” 
8. That maintaining “public confidence in the legal profession is a legitimate state interest that courts can and do promote through professional conduct rules.”

No doubt, counsel for the State Bar would have readily embraced all of these principles when applied to what Eastman actually did to assist Trump in threatening the peaceful transition of power following his defeat in the 2020 election.

But then coming to the key First Amendment issue at stake in Eastman’s case, Roiphe and Green offered such a succinct summation of the law that counsel for the State Bar could well have led with it in his opening statement:

We see no First Amendment problem with rules generally forbidding lawyers from lying to judges, clients, opposing counsel and parties, and other identifiable individuals to whom lawyers make representations in a legal matter and who might rely to their detriment on the lawyers’ false statement.

A hypothetical scenario after counsel for the State Bar read the foregoing quotation to the court

It’s easy to imagine the State Bar’s counsel responding to Roiphe’s points as follows:

So then Prof. Roiphe, would you not agree that if the Court finds that Dr. Eastman knowingly lied to his client President Donald Trump and then lied to Vice President Mike Pence, that would constitute unethical conduct? What then if he likewise lied to the crowd at the rally at the National Mall on Jan. 6? What about his claim that the Vice President had the constitutional authority to refuse to count official, certified electoral slates submitted by the Governors of the States? Given all this, is there any real First Amendment problem if the court rules in favor of the State Bar and disciplines Dr. Eastman and even disbars him?

But it may have even gotten worse for Eastman if Roiphe had testified to her opinion that where a “lawyer lies about election fraud, there is no reason to conclude that the lawyer’s lies will have greater weight than anyone else’s.”

Stephen Rohde, A Bitter Pill: Does the First Amendment Protect John Eastman’s Defense of the “Big Lie”? — First Amendment News 385

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That is when — in her words — Roiphe would have had to ask the readers of her co-authored article to consider the “Stop the Steal” rally at the National Mall on Jan. 6. That is when “two lawyers, Rudolph Giuliani, and constitutional law professor John Eastman, asserted that former President Trump won the election.” She would have to justify why she wrote “questionable whether the public perceived that Giuliani and Eastman were representing Trump as a client.” Even if they were, it would not alter what the Roiphe and Green law review article describes as “how the public would perceive the legal profession in retrospect; nor would it make much difference in assessing the lawyer’s character to practice law.”

Surely, counsel for the State Bar would have emphasized that Eastman said much more to the crowd. He forcefully declared: “All we are demanding of Vice President Pence” is that at 1:00 p.m. he “let legislatures of the state [sic] look into this so that we get to the bottom of it …”  Then, he added: “It had to be done and anybody that’s not willing to stand up to do it, does not deserve to be in the office.”

In light of the gravity of Eastman’s lies and the potential effect on our very system of government, Roiphe’s claim that “there is no reason to conclude that the lawyer’s lies will have greater weight than anyone else’s” rings hollow.

Significantly, she would have been confronted with the fact that after Giuliani and Eastman spoke, Trump told the crowd:

John is one of the most brilliant lawyers in the country, and he looked at this and he said, “What an absolute disgrace that this can be happening to our Constitution.”

View video

 Trump then continued: 

I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our Constitution.  

Clearly, Trump wanted his lawyer’s statements to be given “greater weight” than those of a non-lawyer. 

What a federal judge and the Jan. 6 Committee had to say about Eastman

Finally, in the “Lawyers and the Lies They Tell” article, Roiphe and Green make a conclusive concession: “Of course, if Trump were violating criminal law by intentionally obstructing justice or inciting a riot, his lawyers could not knowingly assist him;” nor “could they lie if doing so was assisting in a fraud.” 

On this point, counsel for the State Bar would surely have asked Roiphe to consider the fact that in March 2022, U.S. District Judge David O. Carter ruled that based on the “crime-fraud exception” to the attorney-client privilege, Eastman was ordered to turn over his communications with Trump to the House Select Committee on the January 6 Attack because Trump and Eastman “more likely than not” conspired to defraud the United States and “dishonestly conspired to obstruct the joint session of Congress on Jan. 6, 2021.” 

The judge stated that the “illegality of the plan was obvious” and that their actions amounted to “a coup in search of a legal theory.” 

Many of the documents Eastman produced related to his legal strategy to pressure Pence not to certify electors from several key swing states when Congress convened on Jan. 6, 2021. “The true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on Jan. 6,” Judge Carter wrote.  “Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history.”

Then counsel would likely ask Roiphe to consider that in its final report issued in December 2022, the House committee found “sufficient evidence for a criminal referral of John Eastman” to the Department of Justice for multiple violations of federal law.  The committee found evidence that “Eastman knew in advance of the 2020 election that Vice President Pence could not lawfully refuse to count official, certified electoral slates submitted by the Governors of the States.” 

In fact, the committee found that he was repeatedly warned his plan was illegal and “completely crazy,” and would “cause riots in the streets.” 

Despite all this, Eastman continued to assist Trump’s “pressure campaign” regardless of the fact that he “admitted in writing that his plan violated the law but pressed for Pence to do it anyway.”

Another hypothetical moment after counsel for the State Bar placed the foregoing facts in the record

“So then Prof. Roiphe, would you not agree that if the Court takes judicial notice of all these matters, there is no First Amendment problem if the court rules in favor of the State Bar? Would it not likewise follow that disciplining Dr. Eastman, up to and including disbarment, is justifiable?” 

Although Roiphe was not permitted to testify, Judge Roland is free to consider “Lawyers and the Lies They Tell” in evaluating Eastman’s First Amendment defense. 

If he loses the trial, Eastman will have no one to blame but himself. After all, based on what he did, measured against settled legal principles, Judge Roland could well conclude that the First Amendment offers him no protection for his egregious and unethical conduct.

Stephen Rohde is a constitutional scholar, writer, and retired civil rights lawyer.  He is the author of “American Words of Freedom: The Words That Define Our Nation” (2001) and “Freedom of Assembly” (2005), and co-author of “Foundations of Freedom: A Living History of Our Bill of Rights” (1991).  

2022-2023 SCOTUS term: Free expression and related cases

Cases Decided

• Counterman v. Colorado (Held: First Amendment violated — 4 votes per Kagan with Sotomayor concurring in part joined by Gorsuch in part. Thomas filed a dissent, and Barrett also filed a dissent in which Thomas joined) (“In this context, a recklessness standard—i.e., a showing that a person ‘consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another’ . . . —is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats—with diminished returns for protected expression. The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment.”
• Jack Daniel’s Properties, Inc. v. VIP Products LLC (9-0: held — When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for “[a]ny non-commercial use of a mark” does not shield parody, criticism, or commentary from a claim of trademark dilution.” This from footnote 1 of the majority opinion: “To be clear, when we refer to ‘the Rogers threshold test,’ we mean any threshold First Amendment filter.” (Justice Kagan wrote the majority. Justice Sotomayor filed a concurring opinion, in which Justice Alito joined. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Barrett joined.)
• United States v. Hansen (7-2: Title 8 U.S.C. § 1324(a)(1)(A)(iv) — which criminalizes “encouraging or inducing” illegal immigration — forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law and is not unconstitutionally overbroad.)

Review granted

• Vidal v. Elster
• O’Connor-Ratcliff v. Garnier
• 303 Creative LLC v. Elenis (argued Dec. 5)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC  (argued March 22)
• United States v. Hansen (argued, March 27) (Volokh commentary here)
• Counterman v. Colorado (argued, April 19)

Pending petitions

• Center for Medical Progress v. National Abortion Federation
• Mazo v. Way
• Tingley v. Ferguson
• Frese v. Formella
• National Rifle Association of America v. Vullo
• U.S. v. Hernandez-Calvillo
• Moody v. NetChoice, LLC
• NetChoice, LLC v. Moody
• Florida v. NetChoice
• Klein v. Oregon Bureau of Labor and Industries

State action

• O’Connor-Ratcliff v. Garnier (cert. granted)
• Lindke v. Freed (cert. granted)

Qualified immunity

• Novak v. City of Parma (cert. denied)

Immunity under Foreign Sovereign Immunities Act 

• NSO Group Technologies Limited v. WhatsApp, Inc. (cert. denied)

Liability Anti-Terrorism Act

• Twitter v. Taamneh (held, 9-0 per Thomas, J.: SCOTUSblog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under 18 U.S.C. § 2333(d)(2).”)

Section 230 immunity

• Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)

Review denied

• Mobilize the Message v. Bonta
• North Carolina Sons of Confederate Veterans v. North Carolina Dept. of Transportation 
• Price v. Garland 
• Keister v. Bell
• Morgan v. Arizona

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FAN 385: Stephen Rohde, “A Bitter Pill: Does the First Amendment Protect John Eastman's Defense of the Big Lie?”