April 7, 2020
By Jacob Huebert
Across the country, the Goldwater Institute is fighting for the First Amendment rights of attorneys who are being forced to pay for bar associations’ politics just to be allowed to do their jobs. Last week, we took another step in that fight: We filed our opening brief in the U.S. Court of Appeals for the Fifth Circuit on behalf of our client Randy Boudreaux, a Louisiana attorney who’s forced to join and pay dues to the Louisiana State Bar Association (LSBA) as a condition of practicing law in the state.
The LSBA uses the mandatory dues paid by Boudreaux and other Louisiana lawyers to lobby and take official positions on a wide range of controversial issues. For example, the LSBA has:
- Called for a moratorium on executions of people who have been sentenced to death;
- Lobbied against efforts to allow school professionals with training and concealed carry permits to concealed carry in schools;
- Called for laws banning private discrimination on the basis of sexual orientation; and
- Called for eliminating the free-enterprise requirement from the state’s high school curriculum.
Boudreaux doesn’t disagree with every position the bar association has taken, but whether he agrees or not, he doesn’t want to be forced to be a member of the organization or to pay for its advocacy. And he shouldn’t have to: His First Amendment right to freedom of association should protect him against having to join any group he doesn’t want to belong to, and his First Amendment right to freedom of speech should protect him against having to pay for anyone else’s political speech.
Besides, if the state wants to regulate lawyers, it can do so without forcing them to join or pay a bar association at all. Louisiana and other states already regulate many other professions and trades without forcing anyone to join or pay an advocacy group. And 18 states already regulate lawyers without requiring them to join or pay a bar association; instead, 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 Louisiana and all of the other states.
Boudreaux’s First Amendment argument builds on Janus v. AFSCME, the 2018 decision in which the U.S. Supreme Court ruled that governments can’t force 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.
The Fifth Circuit should reverse a New Orleans federal district court’s order that dismissed Boudreaux’s First Amendment challenge to mandatory LSBA membership and dues. 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.