March 27, 2019
by Jacob Huebert

Can the government make you pay for someone else’s political speech before it will let you work in a particular field?

You might think not. Under the First Amendment, we all have the right to choose what speech we will and won’t support with our money. And the U.S. Supreme Court recently upheld that principle in Janus v. AFSCME when it ruled that governments can’t make their employees pay for unions’ political speech.

Yet in a majority of states, lawyers are forced to pay for others’ speech just to do their jobs. In 32 states, all lawyers must join and pay dues to a state bar association. And those bar associations can—and often do—use lawyers’ mandatory dues for political and ideological advocacy. Sometimes they lobby for and against state legislation; sometimes they support and oppose state ballot measures; and sometimes they publish political and ideological views in publications they send to their members.

Consider the Oklahoma Bar Association (OBA). In the past decade, it’s used lawyers’ mandatory dues to campaign against a controversial tort-reform bill and to lobby against proposed changes to the state’s method for choosing its judges, even staging a rally at the State Capitol.

It’s also used lawyers’ mandatory dues to publish advocacy on issues of law and policy in its Bar Journal. In the past three years alone, articles in the Oklahoma Bar Journal have, for example:

  • Repeatedly condemned proposals to change Oklahoma’s current system for choosing judges—so-called “merit selection,” which some criticize for allegedly favoring the interests of trial lawyers—to one more like the federal system;
  • Repeatedly attacked (and inaccurately described) recent Supreme Court decisions expanding First Amendment protection for campaign-related speech;
  • Called for greater state regulation of the oil and gas industry; and
  • Called for the election of more lawyers to the state legislature.

And these articles weren’t presented as part of a forum in which Oklahoma attorneys were invited to discuss their various views. In fact, many of them were written by the association’s president or executive director—with no space given to the other side.

The Oklahoma Bar Association also used member dues to advance a particular political agenda when it hosted Jane Mayer, author of Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, as the keynote speaker at its annual meeting just days before the 2016 general election. Her topic, selected by the Oklahoma Bar Association’s president? The supposed harmful influence of “wealthy conservative libertarians” on politics and the judiciary.

One can agree or disagree with views the Bar Association has espoused and supported on these controversial topics. But everyone should agree that a person shouldn’t be force to support one side or the other in the debates on these issues just to be allowed to practice law.

Fortunately, Tulsa attorney Mark E. Schell is standing up for his rights and seeking to end this practice. For more than 35 years, he’s been forced to pay dues to the OBA even as he’s disagreed with many of the positions it’s taken. In a lawsuit filed by the Goldwater Institute, he’s asking the federal courts to strike down Oklahoma’s requirements that he join and pay the Oklahoma Bar Association for violating his First Amendment rights to freedom of association and freedom of speech.

Mr. Schell joins several other attorneys represented by the Goldwater Institute who have sued to stop their states from making them subsidize their bar associations’ speech.

In North Dakota, Goldwater Institute client Arnold Fleck saw the bar association he was forced to pay use $50,000 of mandatory member dues to oppose a ballot measure to reform child-custody law that he’d personally supported with his time and money. The U.S. Court of Appeals for the Eighth Circuit ruled against Fleck in 2017, but in December the U.S. Supreme Court ordered the lower court to reconsider its decision in light of Janus. The Eighth Circuit will hear arguments on that case in June.

In Oregon, Goldwater Institute clients Daniel Crowe and Lawrence Peterson opened their mandatory bar association’s monthly periodical only to discover that their dues were being used to publish harsh criticisms of President Trump they disagreed with. Their case is currently before a federal trial court in Portland.

Ultimately, the U.S. Supreme Court should hear one of these cases and declare that lawyers have the same First Amendment rights as everyone else and can’t be made to pay for other people’s politics just to pursue their profession.

Jacob Huebert is a Senior Attorney at the Goldwater Institute. He was part of the team that litigated Janus v. AFSCME.

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