Yet another mandatory bar association lost a First Amendment challenge brought by several of its members. The Ninth Circuit Court of Appeals decided the latest in an ongoing surge of cases challenging bar association activity for infringing on members’ individual rights. Finding that bar officials violated members’ right to freedom of association by publicly endorsing criticism of then-President Trump, the court returned the case to the district court to determine the appropriate forward-looking relief. ABA Litigation Section leaders consider this to be a comparatively measured opinion but warn that bar associations and their members should take precautions to protect their programs and publications.
Deciding the latest challenge to mandatory bar associations, the U.S. Court of Appeals for the Ninth Circuit found that officials of the Oregon State Bar (OSB) infringed on OSB members’ right to freedom of association by publishing statements critical of then-President Donald Trump in a manner that imputed the views on all bar members. In Crowe v. Oregon State Bar Association, lawyers in Oregon challenged compulsory bar membership as unconstitutional and sued various OSB officials for violating the First Amendment. Although the Ninth Circuit dismissed the broader claim against the OSB on sovereign immunity grounds, which shields the state and “arms of the state” from suit, the claims against OSB officials remained.
The April 2018 issue of the Bulletin, an OSB publication funded in part by bar membership dues, included a two-page spread condemning “white nationalism and the normalization of violence.” The first page, signed by six OSB officers, spoke out generally against discrimination and hate-motivated violence. The second page contained a statement expressly criticizing then-President Trump for his alleged support of white nationalism. Presidents of seven specialty bar associations, which are voluntary groups separate from the OSB, signed the second statement. The Ninth Circuit held that the statements, taken together, infringed on the members’ freedom of association.
The appellate court explained that compulsory organizations infringe on members’ freedom of association when a reasonable observer would attribute some meaning to membership with which the member disagrees. Membership in a state bar, a primarily regulatory organization, does not normally imply any expressive message. According to the Ninth Circuit, even when a bar engages in expression, such conduct does not violate members’ rights unless it is done in a way that imputes the views on the individual members. Here, OSB leadership crossed that line. Although the OSB officials did not sign the second statement, the court emphasized that both statements were printed together within a green frame under the OSB’s logo. Further, OSB leadership’s statement spoke “[a]s a unified bar” and commended the “courageous work done by specialty bars,” thereby endorsing the specialty bars’ statement.
Nonetheless, a bar’s expressive activities, even those with which members may disagree, are permissible if “germane” to the bar’s purpose. The Ninth Circuit observed that, while preventing violence and racism may be relevant to improving the legal system, “the connection here was too tenuous.” Specifically, the criticism of Trump’s foreign policy and his description of Haiti and African countries as “shithole countries” did not relate to the justice system. Because the statement was not germane, it necessarily followed that the OSB’s endorsement of that statement was likewise not germane. Advising that the remedy need not be “drastic,” the Ninth Circuit remanded the case to the trial court to determine the “appropriate forward-looking relief.” The trial court has not yet ruled.
Crowe is not the first challenge to mandatory bar associations, and similar lawsuits are pending across the country. In 1990, in Keller v. State Bar of California, the U.S. Supreme Court held that mandatory bar dues may be used to fund activities or causes with which some members disagree, provided those activities are “necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal service available to the people of the State.” Such activities are “germane” to the bar’s purpose. Keller served as the guiding standard for many years.
However, in 2018, the Court decided Janus v. AFSCME, disallowing collection of union agency fees from public employees to fund collective bargaining efforts with which the workers may disagree. That same year, the Court vacated and remanded Fleck v. Wetch, a freedom of speech challenge to a mandatory bar association, “for further consideration in light of Janus.”
A wave of lawsuits against compulsory bar associations has followed these holdings. “Challenges to mandatory bar associations are clearly a trend,” observes Jeanne M. Huey, Dallas, TX, Co-Chair of the Litigation Section’s Ethics & Professionalism Committee. She explains, “in recent years, there have been serious challenges to mandatory bars in at least seven states of the approximately 31 that have mandatory bars.” Two of these challenges were recently addressed in the Fifth Circuit, with one, McDonald v. Longley, resulting in a finding that the State Bar of Texas could “not continue mandating membership in the bar as currently structured or engaging in its current [lobbying] activities.” Most recently, in Suhr v. Billings, a Wisconsin district court refused to dismiss a lawsuit alleging that the Wisconsin State Bar violates its members’ First Amendment rights by funding initiatives such as diversity programs, with which the plaintiff specifically disagrees.
The cases, with Crowe being only the most recent, suggest a larger movement. “The social landscape in our country seems to be shifting towards people seeking their own individuality, and this case seems to fit with this national trend toward individuality,” says Jennifer Clewis Thomas, Southlake, TX, Co-Chair of the Section’s Diversity, Equity & Inclusion Committee.
“Each challenge to the mandatory bar highlights the tension between maintaining a mandatory bar that functions as the educational framework for the legal profession and respecting individual rights under the First Amendment,” notes Huey.
“I don’t think that there is an issue with mandatory bar associations or that this system is, in a way, broken,” reflects Thomas. “It is something that has existed for many years before this and is a tradition in our legal system,” she adds. Looking forward, though, “[i]f, following these opinions, bar associations focus only on narrow or regulatory issues, I think that would ultimately do a disservice to us,” laments Thomas. She advises that “[b]ar associations should be aware of these issues though and take precautions when they can.”
“The long-term effects of this ruling on future cases will depend on how other courts interpret its findings and the willingness of attorneys to challenge the status quo,” remarks Huey. She cautions against drawing long-term conclusions. “Only time will tell how the majority of circuits will address the constitutionality of mandatory bar associations as more challenges arise and rulings are issued,” she explains.
According to Section leaders, all hope is not lost for mandatory bar associations or their programs. “The Crowe ruling offers a balanced approach,” Huey explains. “It allows room for future legal challenges while indicating that current systems might not require major changes if small modifications like disclaimers can adequately protect individual rights.”
Nonetheless, Thomas worries Crowe and similar cases “could have a negative impact on bar associations’ DEI [diversity, equity, and inclusion] focused activities and cause bar leaders to back away from supporting such programs for fear of being sued.” However, she continues, “this opinion should not dissuade bar associations from promoting diversity, equity, and inclusion, but leaders may need to change their approach on how they handle those programs or efforts.”
For example, as Huey observes, “the Crowe court’s ruling—allowing disclaimers to soften the effects of political speech—is a more flexible approach than other courts recently addressing the same issues.” Thomas agrees that “in most instances, a simple statement that ‘this [publication or statement] may not be representative of all our members’ will allow all views and perspectives to still be shared within the legal community and the public at large.”
