Judge says right to free speech protects legislator who belongs to Oath Keepers
January 4, 2023
An Anchorage Superior Court Judge has ruled that Wasilla Republican Rep. David Eastman’s membership in the Oath Keepers does not violate the Alaska Constitution’s disloyalty clause because of First Amendment protections for free speech.
The decision, which may be appealed, means Eastman may continue serving in the Alaska Legislature. Eastman was re-elected in November.
In a 49-page order issued Dec. 23, Judge Jack McKenna said the Oath Keepers — labeled an antigovernment militia by the federal government — “are an organization that has, through words and conduct, taken concrete action to attempt to overthrow by violence the United States Government.”
That meets the standards for disloyalty under Article XII, Section 4 of the Alaska Constitution, which says that someone who aids or belongs to an organization that advocates the forcible overthrow of the U.S. government is barred from holding office here.
But the First Amendment must be considered, McKenna said: “The court further finds that Rep. Eastman is a member of that organization, but that he does not and did not possess a specific intent to further the Oath Keepers’ words or actions aimed at overthrowing the United States government. The court therefore finds that he is not disqualified from holding public office by Article XII, Section 4.”
The decision comes in response to a lawsuit filed by a Matanuska-Susitna Borough resident, Randall Kowalke, who challenged Eastman’s eligibility for office under the disloyalty clause.
A ruling in Kowalke’s favor could have prevented Eastman from taking office.
Kowalke’s attorney said a decision on whether or not to appeal will not take place until after Christmas.
Eastman did not respond to a text message seeking comment but has been actively fundraising for his legal defense. In emails sent to supporters, he solicited donations and suggested that he could spend as much as $300,000 on his case.
McKenna’s order has been placed on hold pending an appeal to the Alaska Supreme Court, meaning Eastman is not yet fully clear to take office. The Alaska Legislature convenes Jan. 17.
McKenna’s findings are a new interpretation of the Alaska Constitution’s disloyalty clause, which has never before been tested in court, and go beyond the clause’s plain language. The clause was written during the anticommunist Red Scare of the 1950s.
Intended to target the Communist Party of the United States, the clause declares that membership alone is enough to rule someone ineligible for public office in Alaska.
Subsequent rulings by the U.S. Supreme Court found that the First Amendment protects speech and association to a greater degree than envisioned by the authors of the Alaska Constitution, and McKenna took those rulings into account.
“The court holds that Alaska’s disqualification for disloyalty clause must be interpreted in harmony with the First Amendment to the United States Constitution,” he said.
The judge concluded that the Oath Keepers did intend violent action and the overthrow of the U.S. government during the Jan. 6, 2021, insurrection at the U.S. Capitol, but he also found that Eastman did not interact with or support the Oath Keepers during the insurrection.
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