September 5, 2019
By Jacob Huebert
Yesterday, the Goldwater Institute took the latest step to protect free speech rights: We’ve filed our opening brief in the U.S. Court of Appeals for the Ninth Circuit in a case challenging Oregon laws that force attorneys to join and pay dues to the Oregon State Bar to be allowed to practice law.
The case, Crowe v. Oregon State Bar, began when the Goldwater Institute’s clients, Oregon attorneys Daniel Crowe and Lawrence Peterson, opened the April 2018 issue of the State Bar’s monthly magazine and saw a statement by the State Bar calling for new restrictions on certain speech believed to incite violence (notwithstanding the First Amendment) and a statement by a group of other bar associations criticizing President Trump for restricting immigration and for allegedly “espous[ing] racist comments” and “cater[ing]” to the “white nationalist movement.”
Crowe and Peterson had long opposed the State Bar’s use of their mandatory dues to advocate for and against public policies and state legislation. The magazine statements were the last straw. They don’t want their dues to be used to fund this or any political speech, whether they agree with it or not.
Represented by the Goldwater Institute, Crowe, Peterson, and an organization they belong to, Oregon Civil Liberties Attorneys, sued to challenge Oregon’s mandatory bar membership and dues for violating their First Amendment rights to free speech and association.
Their argument builds on last year’s Janus v. AFSCME decision, in which the Supreme Court ruled that the First Amendment forbids governments from forcing their employees to pay union fees that are inevitably used to fund union political advocacy. If the government can’t force its employees to pay for an organization’s political speech to be allowed to do their jobs, it shouldn’t be able to force lawyers to do so, either.
If the state wants to regulate lawyers, it can do without forcing them to join or pay a bar association. We can be sure of that for a couple of reasons. For one, the state already regulates many other professions and trades without forcing anyone to join or pay an advocacy group. For another, 18 states already regulate lawyers without requiring them to join or pay a bar association. In those states, the state supreme court regulates attorneys directly and charges them an annual registration fee to cover the cost. Two other states, California and Nebraska, recently restricted their mandatory bar associations to using member dues only for certain genuinely regulatory activities—not political speech. If those states can regulate the legal profession without forcing lawyers to pay for a bar association’s political speech, so can Oregon and all of the other states.
Unfortunately, the Portland federal district court dismissed Crowe and Peterson’s claims, primarily because it concluded that the Supreme Court already approved of mandatory bar membership and dues in a 1990 decision, Keller v. State Bar of California. But that’s not correct. In Keller, the Supreme Court expressly declined to decide whether it violates attorneys’ freedom of association to make them join a bar association that engages in political speech that isn’t relevant to improving the quality of legal services and regulating the practice of law, saving the issue to be decided in a later case. And Keller said that the First Amendment restricts mandatory bar associations’ use of mandatory dues in the same way that it restricts public sector unions’ use of mandatory fees. After Janus, that means mandatory bar dues, like mandatory union fees, shouldn’t be allowed at all.
The Ninth Circuit should reverse the district court’s decision. And the Supreme Court should ultimately declare—in this case or one of the others across the country in which lawyers are challenging mandatory bar dues—that the First Amendment protects the right of everyone, including lawyers, to choose which groups’ political speech they will and won’t pay for.
Jacob Huebert is a Senior Attorney at the Goldwater Institute. He represents the plaintiffs in the Crowe case.