July 2, 2021
By Jacob Huebert
Should lawyers be compelled to join a bar association and pay dues to fund speech they disagree with? Two decisions issued today by the U.S. Court of Appeals for the Fifth Circuit could spell the end of these unconstitutional requirements—with potentially huge consequences for the future of free speech.
The Fifth Circuit reversed a lower court’s dismissal of the Goldwater Institute’s First Amendment challenge to Louisiana’s requirement that attorneys join the Louisiana State Bar Association (LSBA) as a condition of practicing law. And, in a separate case—and a landmark ruling—it held that Texas’s requirement that lawyers join and pay dues to the State Bar of Texas violates attorneys’ First Amendment rights.
The LSBA uses lawyers’ mandatory dues to engage in advocacy on a wide range of controversial issues, from the death penalty to drug policy to LGBTQ rights. It even used member dues to advocate removing free enterprise education from the state’s high school curriculum. And like all Louisiana attorneys, the Goldwater Institute’s client, New Orleans lawyer Randy Boudreaux, was forced to fund this political advocacy. Writing for the Fifth Circuit, Judge Don R. Willett ruled that Boudreaux should be allowed to pursue his claim that making him join the LSBA violates his First Amendment right to freedom of association, based on the bar’s advocacy on political issues that have nothing to do with the LSBA’s supposed purpose of regulating the legal profession and improving the quality of legal services. The court also ruled that Boudreaux’s challenges to mandatory LSBA dues and the LSBA’s procedures for protecting attorneys’ First Amendment rights, which the lower court dismissed on procedural grounds, could proceed as well.
Like the LSBA, the Texas Bar also takes positions on a wide range of political issues, including many that have nothing to do with regulating lawyers or improving legal services. And in the Texas case (in which the Goldwater Institute had filed a friend-of-the-court brief), the court was not just reviewing dismissal of the plaintiffs’ First Amendment claims, as in the Louisiana case; it was reviewing a final judgment, and therefore was in a position to rule directly on whether Texas’s mandatory bar membership and dues violate the First Amendment. It concluded that they do.
Writing for the court, Judge Jerry Smith recognized that “states have an interest in making lawyers pay for the cost of their own regulation through mandatory fees.” But, the court concluded, states do not have a compelling interest in making attorneys pay for other bar association activities, particularly political advocacy that has nothing to do with the Bar’s regulatory role. Texas certainly could regulate lawyers without making them subsidize such political speech. And because the state could regulate lawyers without infringing their First Amendment rights in that way, the Court ruled that they must do so.
The Fifth Circuit’s ruling in the Texas case is the first decision from a federal court striking down mandatory bar membership and dues. Other courts to consider the issue have assumed that the Supreme Court approved of compulsory bar membership and dues in a 1990 case, Keller v. State Bar of California. The plaintiffs in these cases have argued that Keller didn’t say that—or that, if Keller did approve of mandatory bar membership and dues, it should be overruled in light of the 2018 U.S. Supreme Court decision that ended compulsory public sector union fees, Janus v. AFSCME.
Therefore, the legal fight over mandatory bar associations is not over—and it’s likely that the Supreme Court will have to resolve it. Last month, the Goldwater Institute filed a petition asking the Court to do so in Crowe v. Oregon State Bar. Ten groups have filed amicus briefs urging the court to hear that case and end compulsory bar associations. Also, earlier this week, the Tenth Circuit ruled that the Goldwater Institute’s challenge to mandatory Oklahoma Bar Association membership, Schell v. Oklahoma Supreme Court Justices, could proceed.
The Goldwater Institute represents Randy Boudreaux together with the Pelican Institute and Loyola University New Orleans Law Professor Dane Ciolino.
Jacob Huebert is a Senior Attorney at the Goldwater Institute.