June 30, 2021
By Jacob Huebert
Free speech scored an important win this week: The Tenth Circuit Court of Appeals ruled yesterday that the Goldwater Institute may proceed with its First Amendment lawsuit challenging Oklahoma’s requirement that attorneys join the Oklahoma Bar Association (OBA) as a condition of practicing law.
The case—brought on behalf of Oklahoma attorney Mark E. Schell, who objects to being forced to join the OBA and to pay dues that fund the OBA’s political activity—had been dismissed by a federal district court judge, who concluded that Supreme Court precedent allows states to require attorneys to join and pay dues to a bar association. Yesterday, the Court of Appeals partially reversed that decision, concluding that the Supreme Court has not addressed whether the First Amendment allows state to make lawyers join a bar association that engages in political speech that isn’t related to regulating the legal profession or improving the quality of legal services, as Schell alleges that the OBA does.
In fact, the OBA has engaged in and published advocacy on a wide range of issues. Among many other things, it has campaigned against tort reform and measures that would have changed the way Oklahoma selects its judges; it has published articles by the OBA’s president condemning the Supreme Court’s decision in Citizens United v. FEC and attacking Oklahoma’s oil and gas industry; and it has held an event at which (according to the OBA’s advertising) the keynote speaker decried the supposed influence of “wealthy conservative libertarians” on the judiciary.
Yesterday’s decision was not a total victory, however: The Court of Appeals affirmed the lower court’s dismissal of Schell’s challenge to mandatory OBA dues. According to the Tenth Circuit, the Supreme Court approved of mandatory dues—as long as they’re used for activities related to regulating the legal profession or improving the quality of legal services—in a 1990 decision, Keller v. State Bar of California.
The Tenth Circuit’s decision is similar to a Ninth Circuit Court of Appeals decision issued earlier this year in another Goldwater case, Crowe v. Oregon State Bar. The Ninth Circuit reversed a lower court’s dismissal of Oregon attorneys’ First Amendment challenge to compulsory Oregon State Bar membership, but, citing Keller, it rejected their challenge to mandatory Oregon State Bar dues. Those plaintiffs have asked the U.S. Supreme Court to hear their challenge to mandatory dues, arguing that mandatory bar dues should be ruled unconstitutional for the same reasons that the Court declared mandatory union fees to be unconstitutional in the 2018 Janus v. AFSCME decision.
The Goldwater Institute is representing Plaintiff Mark E. Schell in this case, together with attorneys Anthony Dick and Charles Rogers, who are members of the Institute’s pro bono program, American Freedom Network. Goldwater has filed similar lawsuits in North Dakota, Louisiana, and Utah challenging the constitutionality of mandatory bar associations.
We are grateful for partnerships with attorneys like Anthony Dick and Charles Rogers, who help make meaningful constitutional litigation possible. If you are a liberty-minded lawyer, you can learn more about pro bono opportunities with the Goldwater Institute here or by contacting Kileen Lindgren at firstname.lastname@example.org.
Jacob Huebert is a Senior Attorney at the Goldwater Institute.