Giuliani’s suspension from the law is unconstitutional

Rudy Giuliani has been suspended from the practice of law without a hearing, based largely on First Amendment-protected statements he made outside of any court of law. A panel of the Appellate Division of New York suspended the former mayor of New York and former United States Attorney last week without giving him an opportunity to dispute the charges against him at an evidentiary hearing. Moreover, he was suspended largely on the basis of statements he made not in court but on television. 

I am particularly familiar with many of his statements because I am advising the legal team representing MyPillow CEO Mike Lindell in his lawsuit against Dominion Voting Systems, regarding Lindell’s own comments about the 2020 election. 

Although Giuliani is now entitled to a post-suspension hearing, it seems clear that the judges already have made up their minds, saying that the result will “likely” be “substantial permanent sanctions” — which means disbarment.

The courts have long held that a lawyer is not entitled to the full protection of the First Amendment for statements made in court. That may be understandable because a lawyer has a special obligation to be candid with judges and jurors.  

But there are no compelling arguments why anyone — lawyer or non-lawyer — should be denied the full protection of the First Amendment when he or she participates in the marketplace of ideas on television, podcasts or other media, even when representing a client. 

Any statements made in such a public context can be rebutted in the marketplace of ideas, and so the public needs no special protection from statements made by lawyers. This is especially true when the statements concern important and controversial political events like an election. 

There is no doubt that Giuliani’s media statements, if made by a non-lawyer, would have been fully protected by the First Amendment, even if knowingly false. This is so for two reasons: Every citizen should have the right to express controversial views — even wrong-headed ones — about a contested election; and every citizen should have the right to hear such views and make up their own minds.

Consider the controversy over the cause of the spread of COVID-19: Initially, people were sanctioned on social media platforms for suggesting that the virus may have originated in a research lab in China; now, that still-unproven theory has been widely accepted — and widely discussed — as a real possibility, because the marketplace of ideas and information changed minds. 

The rules under which Giuliani has been suspended are so vague that they cannot possibly satisfy the standards of due process, especially where public speech is concerned and clarity is required before it is suppressed. 

The court cited a rule allowing disbarment for conduct, including speech that “adversely reflects on the lawyer’s fitness as a lawyer.” It is difficult to imagine a more subjective standard subject to selective application. The panel also cited a rule that called for disbarment for knowingly making “false statements of fact or law to a third person.” 

If these rules were applied across the board fairly, and equitably, thousands of lawyers would be disbarred every year. I personally know of dozens of lawyers who seemingly have violated these rules. Lying and exaggeration are all too common in plea-bargaining, negotiations and soliciting clients. And yet these sins are never the basis for discipline against recidivating lawyers. I can document dozens of similar cases where disciplinary boards in New York and elsewhere have done nothing to lawyers who have committed misconduct far more egregious than that alleged against Giuliani, including prosecutorial misconduct that resulted in the conviction of innocent defendants. Giuliani clearly is the victim of selective suspension based on the political content of his public speech, rather than on neutral principles. 

When I came of age in the 1950s, there were many such selective suspensions and disbarments of attorneys. Back then the victims were largely radical left-wing lawyers — communists, former communists and “fellow travelers” — or, in the South, they were civil rights lawyers. Today the victims of selective enforcement are largely right-wing supporters of former President Trump. The dangers to civil liberties and constitutional rights are similar in each instance.

Whether one is a liberal or a conservative, a Democrat or a Republican, everyone should be concerned when any lawyer — whether one approves or disapproves of their conduct — is suspended without a hearing based on vague criteria that curtail freedom of speech. As a liberal Democrat who voted for President Biden and who believes his election was fair and legitimate, I strongly disagree with the decision in the Giuliani case.   

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump for the first Senate impeachment trial, and he is advising the legal team of MyPillow CEO Mike Lindell in a lawsuit against Dominion Voting Systems regarding Lindell’s comments about the 2020 election. Dershowitz is the author of numerous books, including “The Case Against the New Censorship,” and his podcast, “The Dershow,” is available on Spotify and YouTube. You will find him on Twitter @AlanDersh.