Thomas Jefferson said that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”
Yet for years, a majority of states and the District of Columbia have required attorneys to join and pay dues to state-run bar associations as a condition of practicing law. Most, if not all, of these bar associations are highly partisan lobbies with woke agendas that take strident leftwing positions and push for radical legislation on a variety of polarizing issues such as abortion, gun control, affirmative action, gender identity, religious liberty and health care.
Many First Amendment challenges have been brought by lawyers who have objected to being compelled to join and pay dues to bar associations whose ideologies have contradicted their personal beliefs. None have been successful.
Until this month.
Within days of each other, the Tenth Circuit (in Schell v. Oklahoma Supreme Court) and the Fifth Circuit (in McDonald v. Longley) reversed lower court decisions that dismissed First Amendment challenges to mandatory bar membership and fees.
These bold decisions were huge victories for the First Amendment and the right to association, and could well set the stage for a Supreme Court decision next term that could cripple progressive bar associations nationwide from shaking down their members to support their radical agendas.
It has long been settled that the First Amendment forbids the government from forcing a person to express or adopt specific viewpoints. The Supreme Court articulated this precept – known as the “compelled speech doctrine” – almost 80 years ago in West Virginia State Board of Education v. Barnette, stating:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Yet, through laws that require individuals to join or pay dues to bar organizations as a condition of employment, many state governments have ignored this fundamental constitutional principle.
And even where such laws have been challenged, many courts, displaying a shameful timorousness, have simply refused to stand up for the First Amendment.
As in other occupations, the profession of lawyering has trade organizations in every state called “bar associations.” In 31 states and the District of Columbia, attorney membership in the state-sanctioned bar association is a mandatory condition to practicing law. Of course, membership is not free – lawyers must pay substantial dues to maintain their active status.
Bar associations initially were developed to educate and improve the legal community. Yet, over time, most of these organizations have devolved into progressive political lobbies pursuing leftist causes.
Take, for example, the American Bar Association, or ABA. While membership in that national lawyers’ guild is purely voluntary, its political dogmas are identical to and representative of its mandatory brethren.
In 2019, an op-ed in the Wall Street Journal explained that “[p]olitical bias is pervasive in much of the ABA’s work. Its governing body, the house of delegates, regularly endorses stridently progressive policies, including on abortion, gender identity and economic rights—policy issues on which an association of lawyers has no special expertise.”
As the National Review aptly noted, “the ABA takes positions—all left of center—on such politically charged issues as abortion, the death penalty, immigration, and health care. To advance its agenda, the organization built a formal lobbying operation on which it spends hundreds of thousands of dollars every year.”
Indeed, the ABA has an extensive list of legislative issues on which it takes a stance. Besides those already mentioned, the ABA also advocates woke positions on criminal justice, affirmative action, gun control, climate change legislation, legalization of marijuana and electoral reform.
And, the ABA frequently files amicus briefs to advance its progressive agenda. It has done so cases involving, among other things, abortion, sexual orientation and transgender status, anti-religious liberty (here and here), gun control and the elimination of cash bail.
The ABA also makes sure to lobby for the appointment of Democrats to the federal bench. In 2012, a Political Research Quarterly study of all ABA evaluations of federal judicial candidates from 1977 to 2008 revealed “strong evidence of systematic bias in favor of Democratic nominees.”
Bar associations depend almost exclusively on membership dues to fund these types of advocacy. Thus, when states condition a lawyer’s ability to earn a living on joining an organization that engages in political or ideological activities with which the lawyer disagrees – and then, through mandatory dues, compels the lawyer to financially subsidize that objectionable speech – the state violates the First Amendment.
Viewed otherwise, this regimen punishes lawyers for refusing to endorse and fund the government’s approved message. While that might fly in authoritarian countries like Iran, North Korea, China and Cuba, it’s fundamentally un-American.
Although the “freedom of association” is never mentioned in the U.S. Constitution, it is implicit in the other rights listed in the First Amendment, which the Supreme Court has said includes “a freedom not to associate” with groups whose beliefs are inimical to one’s own.
When a state compels lawyers to join an organization with whose ideological views they disagree as a precondition to working in that state, something is rotten in the state of Denmark.
Yet, to date, no constitutional challenge to forced membership in a state bar association has succeeded.
The Supreme Court also has made clear that requiring a person to subsidize the speech of others “raises similar First Amendment concerns” to laws compelling speech, and that when speech is compelled, “individuals are coerced into betraying their convictions.” The forced endorsement of objectionable ideas, said the Court, is “demeaning.”
This principle applies to mandatory bar association dues – an issue that the Supreme Court considered in Keller v. State Bar of California.
In Keller, the plaintiffs claimed that compelled financial support of a bar association violated their rights to freedom of speech, and that the Constitution prohibited the State of California from using their membership dues “to finance certain ideological or political activities to which they were opposed.”
In upholding the compulsory dues in that case, the Supreme Court determined that the state bar could constitutionally impose mandatory fees to fund activities “germane” to “regulating the legal profession or improving the quality of the legal service available to the people of the State.”
Thus, said the Court, while “compulsory dues may not be expended to endorse or advance a gun control or nuclear weapon freeze initiative,” they could be spent on such activities as “disciplining members of the Bar or proposing ethical codes for the profession.”
The Keller Court’s “germaneness” test for analyzing the constitutionality of laws that compel funding for speech was called into question in 2018, with the Supreme Court’s decision in Janus v. AFSCME.
In Janus, the Supreme Court held that laws forcing public employees to fund the political speech and lobbying activities of a public sector union through mandatory “agency fees” violated the First Amendment, and were therefore unconstitutional.
The Janus Court stated that the legality of mandatory agency fees should be evaluated under “the same constitutional rule” applied to assess the lawfulness of forced membership and dues in bar associations.
Then, instead of applying Keller’s “germaneness” test, the Court applied a different test – called “exacting scrutiny” – to the laws in question. Under “exacting scrutiny,” compelled association with a particular group is permissible only when it serves a “compelling state interest” and “cannot be achieved through means significantly less restrictive of associational freedoms.”
As its name implies, it’s a tough standard to satisfy.
And because the compulsory agency fee requirement in Janus failed to clear this high bar, it was struck down.
This month’s decisions by the Tenth and Fifth Circuits are welcome developments to those who value their First Amendment freedoms, and may well mark an inflection point for efforts to strike down laws that have thus far allowed the government to force citizens to subsidize leftist speech with which they disagree.
The Fifth Circuit in McDonald v. Longley analyzed a Texas law compelling bar membership and fees under “exacting scrutiny” – not under the more loosey goosey “germaneness” standard – and concluded that compelled bar membership violates the First Amendment’s freedom of association.
“Bar associations that … engage in [political or ideological activities] will almost certainly be engaging in … expressive activities that support a particular conception of the good life or controversial ideology of the good society. And, when a bar association does so, part of its expressive message is that its members stand behind its expression. The membership is part of the message. Compelling membership, therefore, compels support of that message. If a member disagrees with that
then compelling his or her membership infringes on the freedom of association.”
The Tenth Circuit, in Schell v. Oklahoma Supreme Court, considered a similar requirement under Oklahoma law that mandated lawyers in the Sooner State to join the Oklahoma Bar Association and pay dues to it.
The trial court had tossed out the plaintiff’s constitutional challenges, but the Tenth Circuit reversed, holding that the plaintiff’s claim that the compulsory bar membership violated his First Amendment right to association should not have been dismissed. It sent the case back for more discovery.
The Tenth Circuit pointed to articles published by the Oklahoma Bar Association in its Bar Journal that appeared to push left-of-center positions rather than simply inform.
These included pieces criticizing the Supreme Court’s decision in Citizens United, blasting “big money and special interest groups” in elections, and arguing that donors could “buy court opinions.” The court also noted that a few months before these articles were published, the Oklahoma Bar Association hosted a program speaker who accused “wealthy conservative libertarians” of doing just that.
Another article in the Oklahoma Bar Journal appeared to advocate for “eliminating bars” on “the ability of prisoners to bring tort suits against prisons and jails” – speech that is not germane to “the recognized purposes of a state bar.”
The Fifth and Tenth Circuits’ willingness to take a stand on this issue will certainly embolden more plaintiffs to challenge mandatory membership in bar associations. And, it hopefully will have a positive impact on several other pending lawsuits that are contesting similar compelled speech and association laws in Louisiana, Michigan, Wisconsin and Utah.
Besides those, there also are two pending petitions for certiorari to the U.S. Supreme Court arising out of the Ninth Circuit – Crowe v. Oregon State Bar and Gruber v. Oregon State Bar – that protest compulsory bar membership and fees.
In conferencing those petitions, the Supreme Court will surely take into consideration the decisions by the Fifth and Tenth Circuit, and those cases will likely give the Supreme Court the extra shove it needs to finally take up this issue.
In 2018, the Supreme Court twice reaffirmed its commitment to enforce the compelled speech doctrine.
In Nat’l Inst. of Family & Life Advocates v. Becerra, the Supreme Court struck down a California law that required that crisis pregnancy centers – organizations that counsel pregnant women against having an abortion – to notify women that California provided free or low-cost abortions and to give them a phone number to call. Then-Justice Kennedy explained why this violated the First Amendment:
“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.”
And, in striking down compulsory agency fees that government employees had been required to pay to public sector unions, the Supreme Court in Janus declared that the right to “eschew association for expressive purposes” flows from the “cardinal constitutional command” that the government may not compel “individuals to mouth support for views they find objectionable.”
With the addition of Justices Kavanaugh and Barrett to the Court’s roster since these decisions were handed down, it’s a better than even money wager that if the Supreme Court grants cert in the Crowe and Gruber cases, it will finally strike down those laws that compel attorneys to join and fund political affinity groups masquerading as bar associations.
To be sure, the Supreme Court denied certiorari last year in a case raising the same issue – Jarchow v. State Bar of Wisconsin – but Justice Thomas authored a strong dissent from the denial which will carry sway this time around.
Further, earlier this month, in Americans for Prosperity Foundation v. Bonta, a majority of the Supreme Court doubled down on the importance of the First Amendment’s freedom of association, emphasizing that protected association is vital to “shield[ ] dissident expression from suppression by the majority.”
During China’s “Cultural Revolution” it was virtually mandatory to own and carry a copy of Mao Tse-Tung’s “Little Red Book,” which contained quotations from the communist leader. Militant Red Guard units dedicated to enforcing communist dogma and purging “bourgeois” elements from Chinese society would check whether those suspected of “revisionist” tendencies were carrying it and able to quote from it.
Laws that force attorneys to fund political and ideological activities they disagree with are no different.
And while all laws that compel speech are bad, they are particularly harmful when they target lawyers – those who have been entrusted to defend the Constitution and the liberties it recognizes.
Indeed, when the New York State Supreme Court recently suspended former New York City mayor and Trump attorney Rudy Giuliani’s license to practice law – a politically-driven hit job that I wrote about here – it stated that lawyers are “an intimate and trusted and essential part of the machinery of justice.” Because they “are perceived by the public to be in a position of knowledge,” they are “a crucial source of information and opinion.”
Such value evaporates if lawyers are forced to promote ideas with which they disagree.
The Supreme Court has stated that “at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State.”
The bold decisions out of the Fifth and Tenth Circuits this month have brought us much closer to putting this lofty principle into practice.
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