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In Alaska, The First Amendment Is On Trial As The Left Tries To Punish Speech

The spurious case against an Alaska lawmaker’s eligibility to hold elected office represents a threat to free speech and free elections.


The case of Alaska State Rep. David Eastman is bizarre and unprecedented, but it isn’t complicated. Put simply, left-wing activists are trying to trample the First Amendment and disenfranchise voters in Eastman’s district by asking a judge to rule him ineligible to hold office in the state.

Why? Because Eastman, 41, is a conservative. So are his constituents in Wasilla who recently elected him to a fourth term. If freedom of speech and association mean anything, Eastman should win his case easily. But the fact that he has to fight in court for the right to represent the people who elected him, and to clear his good name, is a testament to the relentless efforts of the left to criminalize the views of their political opponents and slander them as insurrectionists.

The details of Eastman’s ordeal almost defy belief. This week, a trial began in Anchorage to determine whether the Alaska lawmaker’s association with the Oath Keepers disqualifies him from holding office on the grounds that his alleged membership in the organization runs afoul of the Alaska constitution’s loyalty oath, which bars individuals from holding office if they belong to a group that “advocates the overthrow by force or violence of the United States or of a State,” or if they themselves advocate the same. A second part of the suit demands that the Alaska Division of Elections conduct assessments of every candidate’s loyalty to the Constitution so that voters will only be able to vote for candidates whose views have been officially approved by the state’s election bureaucracy.

Setting aside the outrageousness of allowing a state agency to vet the opinions of political candidates before their names can appear on the ballot, consider the gravity of what’s at stake in Eastman’s case: guilt by association. By his own admission, Eastman’s connection to Oath Keepers, a loosely organized group with some 38,000 members, is a “slight one.” He made a donation to the organization more than a dozen years ago and received a “lifetime membership” but says he has never attended a meeting.

To be sure, the Oath Keepers might not be everyone’s cup of tea. Last month, the founder of the organization, Elmer Stewart Rhodes III, was convicted of seditious conspiracy in connection with the Jan. 6 riots, as was the leader of the organization’s Florida chapter.

But whatever one thinks of the Oath Keepers is entirely beside the point, which is that the First Amendment is supposed to mean something concrete in America. By way of background, the loyalty clause in question was included in Alaska’s constitution when it was drafted in 1956 amid the anti-communist “red-scare” and the McCarthyism of the House Un-American Activities Committee. Most states don’t have such clauses for the simple reason that the U.S. Supreme Court has ruled that mere advocacy, even advocacy to overthrow the government, is protected by the First Amendment.

The landmark case at issue here is of course Brandenburg v. Ohio, from 1969, which distinguished between advocacy, or speech, and “incitement to imminent lawless action.” One of the great things about living in a free country is that you can argue for whatever you like, so long as you stick to argument and not incitement. (There was even a case prior to Brandenburg, in 1966, in which the Supreme Court ruled that the First Amendment barred the Georgia legislature from refusing to seat an elected member because of his allegedly treasonous anti-war views, which the court said did not “demonstrate any incitement to violation of law.” That case is nearly identical to Eastman’s case.)

Alaska’s loyalty oath, in other words, is an obsolete holdover from an earlier era. The idea that it could pass constitutional muster today, much less be used to disenfranchise voters, would be laughable if left-wing activists weren’t really trying to do just that.

It doesn’t matter that the Oath Keepers organization itself bars membership of anyone “who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates the overthrow of the government of the United States or the violation of the Constitution thereof.” Nor does it matter that the group’s entire mission is “to support and defend the Constitution against all enemies, foreign and domestic.” Even if the Oath Keepers were an organization advocating for the violent overthrow of the U.S. government, that would still not be a valid basis to prohibit Eastman from running for elected office in Alaska.

Put simply, Eastman’s membership in Oath Keepers is protected by the First Amendment, period. He can’t be barred from running any more than he can be forced by a judge or the Alaska Division of Elections — or anyone else — to recant his conservative views.

If Eastman loses in court, the judge has said he will simply appoint the second-place vote-getter to the seat Eastman won in November by an overwhelming margin. (In Alaska’s insane ranked-choice voting scheme, that would mean a candidate who earned only 27 percent of the vote, versus Eastman’s 52 percent, would be given the seat, disenfranchising voters who clearly want Eastman to represent them.)

Whatever happens in his case, the fact that Eastman has been hauled into court should stand as a warning to every conservative: The left intends to criminalize dissent, to declare some political opinions beyond the pale, and some votes more equal than others. 

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