Editor’s note: The following analysis is published with permission from the Foundation for Individual Rights and Expression (FIRE) which is a national leader in promoting free speech advocacy and legal defense.

“Are you now or have you ever been a member of the Communist Party?”

It’s a question that evokes the dark, bygone era of McCarthyism, when the government probed its citizens’ allegedly subversive views and associations. But that era may not be so bygone after all, as a court considers whether to disqualify an elected official from office for “disloyalty.”

Last month, voters in Alaska awarded state Rep. David Eastman a fourth term in office. He won the race by nearly 25 points. But thanks to an antiquated and unconstitutional “disloyalty” clause in Alaska’s state constitution, Eastman’s political career might be over.

More than a decade ago, Eastman joined the Oath Keepers, an organization that describes itself as a “group of proud American Patriots who are dedicated to upholding the constitution of the United States.” Eastman says the group’s “only requirement for membership is a commitment to honor the oath that we each have taken as public servants to support and defend the constitution.” 

But not everyone sees the group the same way.

The true test of freedom, he said, is “the right to differ as to things that touch the heart of the existing order.”

The Oath Keepers made headlines in 2021 after several members, including the group’s founder Stewart Rhodes, participated, or were involved behind the scenes, in the Jan. 6 Capitol riot. Last month, Rhodes and another group leader were convicted of seditious conspiracy for their plot to violently overturn the 2020 presidential election. Trials for other members of the group for their roles in Jan. 6 are pending. 

Alaska joined the union during the Second Red Scare, and the disloyalty clause arose from worries about subversive communist influence and tensions with the Soviet Union.

Eastman attended former President Trump’s rally preceding the Jan. 6 riot, but he hasn’t been convicted or even accused of entering the Capitol or attempting to overthrow the government. 

Still, Eastman’s decision to join the Oath Keepers more than 10 years ago is coming back to haunt him. Earlier this year, Alaska resident Randall Kowalke filed suit against Eastman claiming his membership in the Oath Keepers disqualifies him from holding public office in Alaska under the state constitution’s “Disqualification for Disloyalty” provision, which provides: 

No person who advocates, or who aids or belongs to any party or organization or association which advocates, the overthrow by force or violence of the government of the United States or of the State shall be qualified to hold any public office of trust or profit under this constitution.

…empowering the state to decide which beliefs are acceptable to express is a recipe for tyranny. 

Eastman’s trial is ongoing.

Alaska joined the union during the Second Red Scare, and the disloyalty clause arose from worries about subversive communist influence and tensions with the Soviet Union. Now, that antiquated provision is being tested for the first time against someone on the political right, perfectly illustrating how eroding freedom to weaken your political enemies is an unwise strategy in the long term.

As Supreme Court Justice Robert H. Jackson wrote nearly 80 years ago, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The true test of freedom, he said, is “the right to differ as to things that touch the heart of the existing order.”

The government can punish those who actually conspire, or attempt, to overthrow the government, but there is no evidence Eastman did either of these things. The First Amendment protects your right to “say you want a revolution,” in the words of John Lennon. It likewise protects your mere association with those who call for toppling the government by force. 

In 1967, the Supreme Court in Keyishian v. Board of Regents held that a public university faculty member’s membership in a subversive group could not alone be grounds for termination. That same year, California’s highest court held the First Amendment barred the state from requiring its employees to take an oath affirming, “I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means.” Sound familiar?

A free society has confidence it will survive the expression of even the most outrageous, abhorrent views.

As FIRE recently observed, the First Amendment itself was “written and ratified by men who advocated for overturning a standing government — and did so.” The Court has recognized that speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” The First Amendment rightly protects such speech unless it is intended, and likely, to incite imminent lawless action. A looser standard would inevitably lead to the government crushing dissent under the guise of preserving domestic security — just look at what’s happening right now in countries like China and Turkey.

A free society has confidence it will survive the expression of even the most outrageous, abhorrent views. It recognizes that empowering the state to decide which beliefs are acceptable to express is a recipe for tyranny. 

FIRE will continue to watch the case against Eastman with interest.

The views expressed here are those of the author.

Click here to support the Alaska Watchman.

Leading free speech group raises constitutional concerns over effort to ban Eastman from AK Legislature

Aaron Terr
A native of Long Island, New York, Aaron graduated from Vassar College with a degree in biology in 2007. He went on to attend the University of Virginia School of Law, where he was a member of the Virginia Law Review. After earning his J.D. in 2012, Aaron worked as a judicial clerk and then as a staff attorney at the Superior Court of Pennsylvania. A former volunteer for the ACLU of Pennsylvania, Aaron has a longstanding interest in civil liberties. In his free time, he enjoys playing guitar, hiking, and playing racket sports.


  • Steve Peterson says:

    “Concerns” seems a little anemic. How about outrage? Horror? At least fear.
    If a liberal organization can nullify an election because it doesn’t like the candidate’s stands then we have a huge problem. Further, that pendulum can swing both ways and they should fear what could happen to their blatantly anti-American candidates. Karma bites.

  • Friend of Humanity says:

    Who is the Foundation for Individual Rights and Expression? Is this another group that has infiltrated and indoctrinated society? I cannot tell from the article and a quick search does not bring up much.

    • Lobo says:

      We don’t see much coverage regarding FIRE, but they have been around a while, and defending the First Amendment rights of Americans on, and off the socialist college campuses. The concept being that the First Amendment applies to not only the spoken, and written speech, but also the freedoms of association. In this case, Eastman is being attacked, conveniently, using his association (membership) with a group that Kowalke assumes that he can use to discredit Eastman via distortion of the facts in order to achieve his desired goals… FIRE is a defender of the U.S. Constitution.

  • Richard Eide says:

    Regardless of who FIRE is, the Eastman attack must not go unnoticed. Freedom loving conservative voters need to pay attention and voice their support of Eastman.

  • Clown World says:

    The legal system in Alaska is far left and those who serve that system have to appease their woke masters. Ego and vengeance fuel their ideologies and all that matters is that “win”. The dude likely doesn’t stand a chance.

  • Tomcrete says:

    Crazy times to say the least .but it’s already been stated the truth will become lies and lies will become truth . Judge should of tossed it out on day one . Another case of hurt feelings because you lost election let the doxing continue. If he is prosecuted nobody is safe .

  • Ruth Ewig says:

    Dave Eastman has done nothing wrong. He is obviously a good and trustworthy leader in Alaska. His values are right on and are the values of our Founding Fathers, values which formed “Western Civilization” in which the historical, political, medical, and economic fields made advances toward the good of humanity. Western Civilization value system includes honor, integrity, work ethic, truth and many others. When applied these virtues have advanced the state, country and world . The Marxist ideology is a worldview that detests Western civilization. Marxists detest the Free Market. Marxist ideology opposes free speech and destroys any person or other ideology because they cannot compete with goodness. HIstorically so many have been persecuted by Marxists. Karl Marx had a deep belief in God. He hated Him. The legal system is being run by Marxists who disregard our US Constitution and equality and individualism in American Citizens. Marxists hate and smear good, courageous leaders such as Lincoln, Reagan, Trump and in this case Representative Dave Eastman who speaksthe truth and practices the values of the Western Civilization. These MAGA Patriots understand their civic duty to God and country. Dave Eastman is good and it may require getting out from under the Alaskan Marxist judicial system…. Note: Our nephew attended the University of Washington in the two fields of Political Science and Journalism and was taught by Marxist professors who used the Free Market system to support themselves financially while training the students like our nephew to hate America as a good Marxist should. Representative Dave Eastman is firm and clear in his thinking and has done nothing wrong. Those agitators who are causing problems for him specifically, such as Kowalke, Judge McKenna and others who are being paid for their performances in some way to invent trouble where there is none are shameful. Thank the Good Lord for American citizens like Eastman who will stand the tests and there are great numbers of them in Alaska and America!.

    • Sally M Pollen says:

      Great comments, Ruth Ewig and others.
      The current generation is apathetic at best regarding what is happening in America today. A relatively few understand Representative Eastman’s battle which is, not only for his constituents, but for all of us. Over the past decades, the dire lack of honest education regarding our nation’s history and the understanding and respect for the constitution has produced a population of ignorance. Now, those of us old enough to realize the great danger we are in are asking God for mercy to save the Republic. And mercy it will take because we have turned our backs on Him as a nation. Even if it is too late to save and restore what once was, as individuals, we may call upon Him for personal salvation and guidance as the road ahead becomes more difficult. There have always been front-runners, those breaking trail and David Eastman and his family are called to that task. Will we be able and available to do the same if called upon? I pray I will.

  • Neil DeWitt says:

    America was founded and became a nation with radical members fighting for freedom. Now here we are with Mr Eastman the American fighting Mr. Kowalke the British all over again. This is only happening again because like our statues the asleep (WOKE) people wanted to do away with truth and history. Mr. Eastman didn’t do anything wrong. He is only on trail to make a name for Mr. Kowalke. Well it’s working so far. It’s also obvious that the judge in this case is after recognition too. Any legal non bias judge would of tossed this case out at the beginning and it would of cost tge tax payers a penny. Look at the real cases that need to be prosecuted that are pushed back as this sham goes on. This is a real tragedy. The people spoke. They elected without bias Mr. Eastman. That should say volumes but in this case its being trampled. This judge is saying your work don’t mean anything. Your a nobody, he has the power. and eill decide if everyone in his opinion has a right to FREE speech or not. This is how pathetic and corrupt our system has gotten!

  • DaveMaxwell says:

    Bend over and place yourself in the familiar fetal position, insert thumb in mouth and reminisce about the days of old. There gone!!!
    Then after a nice little nap rise up and put on battle amor and get in the fight and do your part!
    We may have already lost this war, but one thing I respect and always will regardless of the outcome, that is a willingness to fight for righteousness!
    What say you???

  • Matthew says:

    Any sitting me ever of any state position that donated to the BLM now needs brought to court and tried. Where are all the lawyers at?

  • Diana says:

    To the author of the article…..”Eastman is protected by Free Speech just as the burning of the American Flag is protected by free speech.” Your counterparts in the courtroom are simply show casing their future in law and legal entitlements by showcasing this for political issues having nothing to do with Eastman committing a crime. Look at the Judge’s background that sits this case and what he has done so far with it. Look at the attorney and his client that wants Eastman’s job in the legislature. Then, look at the political circus of the Jan 6 Committee, a citizen’s kangaroo court. They just stretched that Kangaroo Court all the way to Alaska and under the present Judge it will be misconstrued and totally convoluted when it comes to writing the order. His purpose it to get famous….look at his background and work issues. The Judge wants this to go to the US Supreme Court if they will take such a case.

  • Steve P Peterson says:

    All my respects to FIRE, but the ACLU should be living up to their name and defending Eastman even if they are a bunch of lefties. At least, that is what they used to do.

  • jon says:

    Eastmen is a member of a group that attacked the Capitol. He may not have been there but he is still a member. He has not resigned his membership, not a good fit for AK.

    • Great Granny says:

      The Oath Takers DID NOT attack the capital…they were there to assist the police in protecting it! Get your facts straight and learn the Oath that they take and their purpose!!

      • Clark says:

        GGranny….did you really tell someone to get their facts straight? One person already plead guilty to seditious conspiracy and the FOUNDER of the group was convicted of seditious conspiracy. Those are FACTS. Even Stuart Rhodes’ wife testified that he was a violent psycho that was said he was ready to die to overthrow the govt to illegally install Trump to power.

      • Friend of Humanity says:

        Clark, I sure am looking forward to the day when the Oath Keepers are cleared of these lies that you and others spew about them. You are trying to write a negative history about them and it will not work as long as Conservatives are still in this conversation. God is good and faithful to those faithful to him!

  • DaveMaxwell says:

    Hurray for Jon
    What a genius commentary! Right on Jon! You go man! Your the best! Give it up for Jon! Give Jon the microphone! We need more of his insightful wisdom! Wow! In touch and
    a breath of fresh air!
    Question for you Jon?! Have I helped your obvious need for therapy? You disagree with Eastman and who he associates with! Well Jon I don’t agree with you! Maybe I should not be allowed to live in Alaska!? You know, “I’m not a good fit”!!!!

  • caleb says:

    Oh gawd DaveMaxwell. I’ll bet you wish you could unsend that tantrum. I’m embarrassed for you.

    • Friend of Humanity says:

      I think that DaveMaxwell made his point. No tantrums, just made his point. I bet DaveMaxwell is not embarrassed.

  • Clark says:

    I support any group bringing the argument before the court that it is a First Amendment test. I disagree, but anyone should have the right to argue it. We already have a similar clause in the US Constitution. Not many lawyers would try to argue that openly supporting treason is a First Amendment right. It’s literally a crime just to voice support(give aid and comfort) to our enemies. It may have never been enforced in court, but its still a clause that has never been ruled unconstitutional.

    If the founder of BLM recruited a bunch of members, went on militia training exercises with them, taught them military tactics and how to combat/kill other humans, taught them to communicate on secret encoded apps(to avoid prosecution), drew up plans to infiltrate the US Capitol…showed them tactical maps and marked the offices of the Republican members, set up weapons caches with guns and ammo and explosives, and even yried to organize an amphibious escape route by boat….then marched into the Capital after Barack Obama told them if they didnt fight like hell they wouldnt have a country anymore…then they violently destroyed property and beat police officers to death and put 20 of them in the hospital; set up a gallows and signs up that said ‘death to Trump’. Do you think anyone would say they were just peacefully protesting? No. Of course they wouldn’t. People would ditch BLM like a hot potato. They would leave in droves and suddenly you’d have trouble finding anyone who would even admit to going to a BLM rally. Every Democratic politician would vehemently disavow their actions and apologize to everyone for participating with them when they thought it was a honorable group. They would also express full-throated support for holding the participants accountable. During the Floyd riots thats exactly what they did. They supported only
    Peaceful protesting and called for anyone committing crimes to be held accountable.
    But Eastman’s own words and actions are making the outlook on his case look terrible. Hes digging in on his position and appears to still be proud to be in a group that has been thoroughly disgraced. Basically its like if he was a member of the KKK and hes saying well the KKK website says nice things, so all these KKK guys in robes burning crosses are just a few extremists and I was only there to make smores!

    • Friend of Humanity says:

      Oh wow! I SEE EXACTLY WHAT YOU ARE DOING! You are saying the left would do what they will never do in this lifetime and you are blaming Conservatives of what the left is doing. Many people’s eyes are opening up to the tactics that you and others use to try to pin everything on Conservatives. It won’t work because more and more people are waking up and are not going to go along with the left/globalist agenda.

  • DaveMaxwell says:

    Nope ,double down and more! Merry Christmas to you!
    Let’s resume this later,shall we? ?