Strossen, Roiphe, and Volokh Support Eastman: A Reader’s Guide
Can a lawyer lose his livelihood for public political speech that would be protected if an ordinary citizen said it? That is the question at the center of an amicus brief by Nadine Strossen, Rebecca Roiphe, and Eugene Volokh supporting Supreme Court review of John C. Eastman’s California disbarment.
The brief, dated October 5, 2026, in Eastman v. State Bar of California, No. 26-336, focuses on Eastman’s speech to the public. The professors argue that a law license does not give the state a general power to punish political commentary, even when officials consider it false or damaging to democratic institutions.
The brief expressly takes no position on other allegations, including statements to courts, to President Trump and his team, or to Vice President Pence and his team. The professors argue that a sanction resting even in part on protected public speech cannot stand unless the government shows it would have reached the same result without that speech. Read the summary of argument (pp. 2–4).
This guide follows the professors’ brief and explains their arguments. It does not report a Supreme Court decision granting review or resolving those arguments. For the underlying petition, see our earlier reader’s guide.
Who filed the brief?
The three amici are scholars of free speech, professional responsibility, and the legal profession. Eugene Volokh also serves as counsel of record. The brief identifies their experience as follows. Read the interests of the amici (pp. 1–2).
Nadine Strossen, Rebecca Roiphe, and Eugene Volokh
Nadine Strossen is identified as the John Marshall Harlan II Professor of Law Emerita at New York Law School, a former national president of the ACLU (1991–2008), and a senior fellow at FIRE, the Foundation for Individual Rights and Expression. Her work includes the book HATE: Why We Should Resist It with Free Speech, Not Censorship.
Rebecca Roiphe is the Joseph Solomon Distinguished Professor of Law at New York Law School. Her scholarship covers legal ethics, the history of the profession, professional speech, and lawyers’ First Amendment rights. Portions of this brief are adapted from her article Why Courts Should Not Discipline Trump’s Lawyers.
Eugene Volokh is the Thomas M. Siebel Senior Fellow at Stanford’s Hoover Institution and the Gary T. Schwartz Distinguished Professor of Law Emeritus at UCLA School of Law. He has written extensively about freedom of speech.
Roiphe’s role in the California proceedings
The brief discloses that Eastman retained Roiphe as an expert witness in the California bar proceedings. It says she was retained to provide an impartial expert opinion, rather than to represent him. The court did not consider her testimony because it concluded that her expertise concerned a question of law within the State Bar Court’s purview. Read the disclosure (p. 1).
1. Would Eastman’s public statements have been protected if he were not a lawyer?
The professors argue that they would have been, even if the statements were knowingly false. Their claim concerns public political commentary about government and elections. They contend that the government cannot punish such criticism on the theory that it damages confidence in government institutions or processes.
The brief relies on New York Times v. Sullivan and its rejection of libel prosecutions on behalf of government. It contrasts that principle with the bar court’s reliance, as described in the brief, on the harm Eastman’s public statements allegedly caused to confidence in elections, election professionals, and courts. Read the opening of Argument I (p. 4).
The professors also invoke United States v. Alvarez, the case involving false claims about military honors. They emphasize the danger of making government the arbiter of truth on broad matters of public concern. In their view, deciding whether political criticism is false presents greater risks of partisan enforcement and chilled speech than evaluating an objectively verifiable claim about a military medal. Read the Alvarez discussion (pp. 4–8).
How the brief reads the different opinions in Alvarez
The brief distinguishes the four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Alito’s three-Justice dissent. It emphasizes that the concurrence and dissent both expressed concern about state punishment of false statements on broad matters of public concern.
The professors reason that the plurality, which protected even the narrower statement about military honors, would also have agreed about broader statements. That is the amici’s inference about the opinions, rather than a description of a single majority opinion addressing Eastman’s circumstances. Read the discussion of the opinions (pp. 5–6).
According to the brief, the bar court assessed Eastman’s statements under an objective reasonableness standard and criticized their intellectual rigor and reliance on experts. The professors argue that officials cannot punish public criticism of government processes simply because they find its analysis insufficiently rigorous or its sources unpersuasive. Their argument does not depend on establishing that Eastman’s election claims were true. Read the critique of the bar court’s approach (pp. 7–8).
The brief acknowledges that claims of fraud in the 2020 election were generally rejected through the legal system and public discussion. It argues that counterspeech and open debate, although imperfect, offer a better response than coercive suppression, which can deepen distrust and partisan conflict. Read the discussion of counterspeech (pp. 8–9).
2. Does being a lawyer change the protection for public political speech?
The professors argue that it does not. Relying on Chiles v. Salazar, NIFLA v. Becerra, and Holder v. Humanitarian Law Project, they maintain that professionals retain broad First Amendment rights, including when speaking to clients. They argue that the case for protection is stronger still when lawyers speak to the public about political and legal questions.
The brief acknowledges categories of regulation that may receive less demanding review: requirements to disclose factual, noncontroversial information in commercial speech, and rules regulating conduct that incidentally involve speech. The amici contend that Eastman’s public political statements fit neither category. Read the professional-speech argument (pp. 9–10).
They also distinguish Gentile v. State Bar of Nevada, which permits restrictions on a lawyer’s speech when it poses a substantial likelihood of materially prejudicing a pending proceeding in which the lawyer is involved. The professors maintain that the public statements at issue here posed no such risk because there was no pending case. In their account, the statements were political commentary about government actors, protected on the same basis as comparable speech by ordinary citizens. Read the Gentile discussion (pp. 10–11).
3. Can the state punish the speech because it sought to undermine democracy?
The professors reject that rationale. They argue that Eastman had a right to contend that government processes failed to determine the election results properly. More broadly, they maintain that lawyers protect the democratic system through adversarial debate and diligent representation within the bounds of the law, rather than through a general obligation to advance a regulator’s conception of democracy.
The brief warns that politically influenced definitions of democracy can become grounds for punishing legitimate advocacy, deterring representation of controversial clients, and chilling political speech. It points to earlier efforts to target lawyers associated with communist or socialist clients, as well as threats faced by civil rights lawyers, anti-poverty lawyers, and lawyers representing detainees in the war against terror.
The professors’ concern extends across political lines. They argue that allowing controversial constitutional claims to proceed through peaceful debate in courts, legislatures, and public discussion is safer for American institutions than suppressing dissent. Read Argument III (pp. 11–13).
4. What if disbarment also rested on other alleged misconduct?
The brief expressly leaves the other allegations aside. The professors take no position on Eastman’s statements in legal proceedings or his communications with the Trump and Pence teams. They argue, however, that this limited focus can still justify setting aside the judgment if the Court concludes that protected public speech contributed to the sanction.
According to the brief, the disbarment decision considered Eastman’s conduct in the aggregate and imposed one sanction, without specifying a separate penalty for each count. The professors contend that the presence of other alleged misconduct does not by itself establish that the same penalty could stand without the protected speech. Read the application to Eastman’s sanction (pp. 13–14).
The cases the professors use to explain this principle
Street v. New York: The brief draws on the Court’s treatment of a conviction that might have rested on both protected words and a potentially unprotected act. It argues that the risk of combining the two applies to Eastman’s single sanction, even though his case involved multiple disciplinary counts.
NAACP v. Claiborne Hardware Co.: The professors cite the distinction between protected elements of a boycott and unprotected violence. Their point is that protected speech does not lose its protection merely because it is considered alongside unprotected behavior.
Mt. Healthy City School District Board of Education v. Doyle: The brief relies on the rule that when protected speech is a motivating factor in a government decision, the government must show that it would have made the same decision without considering that speech. The professors argue that this principle applies to exclusion from a profession as well as dismissal from a government job. Read the cases and their proposed application (pp. 13–16).
The qualification matters: the brief does not claim that identifying any protected speech automatically resolves every disciplinary allegation. Its argument is that the sanction cannot stand unless the government shows that it would have reached the same result absent the protected speech. Read the express qualification in the summary (p. 3) and the Mt. Healthy discussion (pp. 15–16).
What the professors ask the Court to do
The conclusion asks the Supreme Court to grant certiorari and clarify when, if ever, lawyers may be disbarred for public political advocacy. The professors warn that similar disciplinary efforts may arise from both the left and the right, making a clear and evenhandedly applied rule important beyond this case.
Part IV also argues that if the Court grants review and finds Eastman’s public speech protected, that would supply a basis to vacate the judgment, subject to the brief’s discussion of whether the same sanction would have been imposed without that speech. The brief does not ask the Court to decide that Eastman’s election claims were correct or to resolve the allegations on which the amici expressly take no position. Read the requested treatment of the judgment (pp. 13–16) and the conclusion (p. 16).
Read the original document
The complete brief on the Supreme Court’s website contains 20 PDF pages: a cover, preliminary pages i–iii, and numbered pages 1–16. Source links use the PDF viewer’s page count. Printed page 1 is PDF page 5.
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Descriptions of the California proceedings and interpretations of the cited cases in this guide come from the professors’ brief. Its citations to the petition and appendix refer to separate materials. The guide summarizes this submission rather than independently resolving the underlying disputes.
A short glossary
Amici curiae: “Friends of the court”: nonparties who submit a brief to assist the Court.
Certiorari: Supreme Court review of a lower court’s decision.
Vacate: Set aside a judgment.
Counterspeech: Responding to speech with criticism, evidence, and argument.
Strict scrutiny: A demanding form of constitutional review requiring the government to justify a restriction by a compelling interest and narrow tailoring.