May 27, 2021
By Jacob Huebert
Forcing someone to pay for another person or group’s political speech is wrong, and the First Amendment is supposed to protect Americans against that kind of coercion. That’s why today we asked the U.S. Supreme Court to decide whether states can force attorneys to pay for a bar association’s political speech just so they can practice their profession.
In 30 states, attorneys must join and pay dues to a state bar association to be allowed to practice law. Many compulsory bar associations use attorneys’ mandatory dues to advocate for and against legislation and public policies, and to publish other political and ideological speech.
Our clients, Oregon attorneys Daniel Crowe and Lawrence Peterson, have been forced to pay dues to the Oregon State Bar (OSB)—and forced to pay for its political speech. In April 2018, they opened the latest issue of the OSB’s Bar Bulletin magazine and saw two statements on alleged “white nationalism.” One of the statements called for limitations “to address speech that incites violence” despite the First Amendment. Another statement criticized President Trump for, among other things, supposedly “allowing [the white nationalist movement] to make up the base of his support” and signing an executive order restricting immigration and refugee admissions.
Crowe and Peterson didn’t agree with these statements and didn’t want to pay for them—but they had no choice. They also don’t want to pay for the OSB’s advocacy on state legislation—but they’ve been forced to do that, too.
Unfortunately, the U.S. Court of Appeals for the Ninth Circuit rejected Crowe and Peterson’s free speech challenge to Oregon’s law that forces lawyers to pay bar association dues. (It did allow their claim that forcing them to become OSB members violates their right to freedom of association to proceed.) Like several other courts across the country, the Ninth Circuit believed that the Supreme Court approved of compelled support for bar association speech in a 1990 decision, Keller v. State Bar of California, as long as the speech is “germane” to “regulating the legal profession and improving the quality of legal services.”
That’s wrong. Keller said that mandatory bar associations are similar to public sector unions and that the “same constitutional rule” should apply to both. At the time, the “constitutional rule” for public sector unions had been set by Abood v. Detroit Board of Education, the 1977 case in which the Court ruled that government employees could be forced to pay fees to cover public sector union activities germane to collective bargaining. But in 2018, the Court overruled Abood in Janus v. AFSCME, which held that governments cannot force their employees to pay union fees. The courts should now apply “the same constitutional rule” to mandatory bar association fees and declare them to be unconstitutional as well.
There’s simply no justification for forcing attorneys to pay for a bar association’s speech. It isn’t necessary to ensure that lawyers are educated and ethical. We know that because 20 states already regulate the legal profession without forcing lawyers to join a bar association that can engage in political or ideological speech.
It won’t suffice to limit bar associations to using mandatory dues for speech that’s germane to regulating the legal profession or improving the quality of legal services. One problem with that idea is that bar associations will always argue that anything they advocate for is somehow “germane.” In this case, the OSB argued that the statements it published criticizing President Trump were germane—even though they had nothing to do with the practice of law—and the Oregon federal district court agreed. Another problem is that it’s not reasonable to expect attorneys to monitor everything their bar association does so they can demand a refund for anything non-germane.
Besides, attorneys shouldn’t be required to pay for anyone’s political speech, even if it does pertain to regulating the legal profession or improving the quality of legal services. After all, different lawyers will have different opinions on how the legal profession should be regulated, or how the quality of legal services could be improved. And regulations of the legal profession or legal services often have broader political implications that affect both lawyers and the general public.
The Court should take this opportunity to end forced subsidies for bar association speech and ensure that lawyers enjoy the same protection for their fundamental First Amendment rights as government employees and everyone else.
Jacob Huebert is a Senior Attorney at the Goldwater Institute.