The First Amendment and State Bar Associations

Attorneys are typically required to pass a “bar exam” to practice law—but in many states, they’re also required to join a bar association. Bar associations are trade organizations that can help the state regulate the practice of law. But they also often engage in political activities—for example, by lobbying for or against proposed legislation and publishing newsletters that take positions on controversial issues.

But the government isn’t allowed to force people to join organizations. It can regulate the practice of law, of course, just like it can regulate other businesses—requiring people to pass the bar exam or to comply with rules that protect clients against fraud. When states go beyond this, and force people to join associations they’d rather not join, they infringe on two essential constitutional rights: the right to free speech and the right to freedom of association.

What’s more, state bar associations often force people to support their political activities when they’d prefer not to—or at least make it difficult for them to avoid it. Through unfair billing practices, state bar associations force lawyers to “opt out” of paying for political activities—by presuming that lawyers are willing to have their annual bar dues support those activities unless they object. That violates a longstanding constitutional rule that the government must never make such a presumption, but instead must ask first—a point the U.S. Supreme Court reiterated in its 2018 decision, Janus v. AFSCME.

This doesn’t just affect lawyers. Bar associations are powerful lobbyists with state and federal governments, affecting everything from judicial appointments to the laws relating to custody in divorce cases. And because lawyers are forced to support their political activity, bar associations can wield unfairly disproportionate influence over laws that affect us all.

The Goldwater Institute is engaged in states across the country to defend the constitutional rights of lawyers who are forced to join bar associations. Here are just a few of our cases—and efforts to change state bar rules:

Fleck v. Wetch (North Dakota)

Crowe v. Oregon State Bar (Oregon)

Schell v. Williams (Oklahoma)

McDonald v. Longley (Texas)

Boudreaux v. Louisiana State Bar Association (Louisiana)

Texas bar inquiry

Arizona rule change petition (2017) (2019 part 1)(2019 part 2)

Wisconsin rule change petition