Eastman should not just be shunned, but disbarred, and possibly prosecuted criminally, not for his dubious legal advice alone, but for his part in attempting to overthrow the government of the United States by force. Those memos were but one part of that conspiracy.
The United States Supreme Court has long recognized that “[o]f all classes and professions, the lawyer is most sacredly bound to uphold the laws.” Ex parte Wall, 107 U.S. 265, 274 (1883). Thus, the “use of illegal means to change the form of the State or Federal Government” as Respondent did on January 6, 2021, is certainly relevant “in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country's legal and political institutions.” Konigsberg v. State Bar of Cal., 366 U.S. 36, 51–52 (1961).
Konigsberg was one of many prosecutions by the California Bar against labor and civil rights attorneys on the left. In the face of a real insurrection on the right, the Bar has been more timid. As I have pointed out here on Medium historically, the government has aggressively prosecuted those on the left, and people of color, who sympathize with a theoretical call for revolution, while ignoring actual insurrection on the right. “The American legal profession, the organized bar in particular, has a dreadful history of political misuse of bar discipline and admission in the name of character evaluation and ethical principles.” James E. Moliterno, Politically Motivated Bar Discipline, 83 Wash. U. L. Q. 725 (2005).
Eastman's words and actions, especially on January 6 itself, were "directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (emphasis added). See Siegel v. Comm. of Bar Examiners, 10 Cal. 3d 156, 175 fn. 18, 514 P.2d 967 (1973) (applying this Brandenburg standard to state bar proceedings).
Yelling “Fire!” may not be a “specific call for violence,” yet shouting that word in a crowded theater is considered the classic case of conduct which loses the “protection of free speech.” Schenck v. United States, 249 U.S. 47, 52 (1919). Eastman's speech on January 6, in the context of the situation, including his memos you discuss here, and the other speeches which led directly to actual acts of violence, was the equivalent of shouting “Fire!” in a crowded theater. His speech and actions were “preparing a group for violent action and steeling it to such action” which is not protected free speech. Noto v. United States, 367 U.S. 290, 297–98, 81 S. Ct. 1517, 6 L. Ed. 2d 836 (1961) (Smith Act prosecution).
“Shunning” is not enough. Professor Chemerinsky has recognized that by signing the petition for the California Bar to take disciplinary action against Eastman. I join that call.
