There’s No Excuse for Violating Attorneys’ Free-Speech Rights

March 13, 2019

As in 30 other states, Oregon requires its attorneys to belong and pay dues to the state’s bar association in order for them to practice law. However, these dues are not just going toward the regulation of lawyers: They’re funding political advocacy that many attorneys don’t agree with. And that’s simply unconstitutional.

Two Oregon attorneys—Daniel Crowe and Lawrence Peterson—were inspired to take action after the state’s bar association journal published an article with political speech they didn’t support. They teamed up with the Goldwater Institute to file a lawsuit to challenge the state’s bar membership requirement. No one should have to fund political speech they don’t agree with in order to earn a living, but that’s just what Oregon—and many other states—are forcing attorneys to do.

Today, the Goldwater Institute will be in an Oregon courtroom to challenge this First Amendment violation. Goldwater Senior Attorney Jacob Huebert, who represents the Oregon lawyers, joined The Lars Larson Show this week to talk about how Oregon’s mandatory bar membership and dues-paying is an example of how employee free-speech rights are being limited.

Last year’s Supreme Court decision in Janus v. AFSCME put an end to mandatory union dues, and Huebert said that this defense of attorney free speech is a natural next step in the fight to protect workers’ right to speak—or not speak. Like unions, bar associations are “special-interest groups that take that money and turn around and use it for political advocacy of various kinds. They put out statements on political issues, they lobby the legislature on what laws they should pass, and in some places, they support and oppose ballot measures, so this is very much like the union situation. People have to pay an entity to do their job, and then that entity can promote political positions that the people who are forced to give the money don’t want to support.”

Supporters of mandatory bar membership argue that bar associations are needed to regulate lawyers—but that’s just not true. “There are 19 states that do manage to regulate lawyers without forcing them to join or pay an organization that engages in political advocacy like this,” Huebert said. And even if you think than an organization is needed to regulate lawyers—and should be funded by the lawyers themselves rather than by the public—“you still don’t need to have one that is able to take that money and use it for political and ideological advocacy as these bar associations do.”

Courts ought to end mandatory bar membership because it’s unconstitutional and unnecessary. “If [a state bar is] going to violate people’s First Amendment rights by making them join and pay an organization, then the government needs to show—if it’s going to be allowed at all—that it’s absolutely essential to serve some very important governmental purpose,” Huebert said. “But it’s not essential—we know it’s not because there are plenty of states that manage to regulate lawyers without it, and if those other states can do it, then all the states that currently have mandatory bar associations can do it. There’s no excuse for it.”

You can listen to Huebert’s full appearance on The Lars Larson Show above.