Should the government force you to subsidize speech you don’t agree with—or even put your name on it—just to do your job? In the famous Janus decision, the U.S. Supreme Court said no—and now the Goldwater Institute is asking the court to enforce that decision in a case challenging an unconstitutional Oregon law. That law forces lawyers to join and pay annual dues to the state’s bar association as a condition of practicing law, even though the association frequently lobbies the government on political issues lawyers disagree with, and publishes partisan political statements with money lawyers are forced to pay.
Oregon is just one of dozens of states where lawyers are required by the government to join the bar associations—which are not government entities, but private trade associations. These associations ostensibly serve the state’s interest in “regulating lawyers” and “improving the quality of legal services.” In reality, they end up doing far more.
The Oregon state bar lobbies the state legislature on matters unrelated to lawyer regulation—endorsing or opposing bills relating to a wide variety of subjects, often having nothing to do with the practice of law. It also amplifies political and social fads through its publications and other activities. In one instance, the it published a lengthy statement in its bimonthly magazine accusing President Trump and his supporters of supporting “white supremacy.”
Daniel Crowe, a retired U.S. Army lieutenant colonel and an Oregon attorney, had enough and objected. After he did, the bar sent him a check for $1.12, plus $0.03 in interest, claiming this amount was the portion of his bar dues used to publish the magazine with the anti-Trump message.
But refund or not, the money is only part of the problem. Mandatory state bars gain their influence and voice because all lawyers in the state are forced to be members. The Oregon bar used Crowe by requiring him to join the organization—violating his right of freedom of association—so that it could appear to speak for the legal profession as a whole.
The Institute filed a lawsuit on Crowe’s behalf, and last year, the Ninth Circuit Court of Appeals agreed that the bar did violate Crowe’s right of freedom of association by publishing the anti-Trump message with his money. But then it said that doing so was no big deal, because the bar could just publish a disclaimer letting the public know that not all members of the bar agree with the statement. Otherwise, it said, it was constitutional to continue forcing Crowe to be a member of the bar and pay it annual dues.
That directly contradicts a decision by the Fifth Circuit Court of Appeals in another Goldwater Institute case—one we brought on behalf of Louisiana attorney Randy Boudreaux. There, the court held that it was unconstitutional to force Boudreaux to join and fund the state bar association when it spent money on matters unrelated to regulating lawyers. And when that happens—even when the bar’s statements are trivial and inoffensive—it’s still unconstitutional to force an attorney to be a member.
The decisions of the Fifth and Ninth Circuits are irreconcilable. That’s known as a “circuit split,” something only the U.S. Supreme Court can resolve. If it’s constitutional to force lawyers to join a bar association in order to regulate the practice of law, then it’s only logical that—as the Fifth Circuit held—it’s unconstitutional to force them to join if the bar does things that have nothing to do with regulating lawyers. The Ninth Circuit’s “disclaimer” theory, by contrast, would enable government to run roughshod over the freedom of association rights—not just of lawyers, but of professionals of all kinds.
Now, Goldwater is continuing the fight to uphold the right of freedom of association by asking the nation’s highest court to take up the case and protect the fundamental right not to be forced to join and fund organizations with whose political views one disagrees.
You can read Crowe’s petition for writ of certiorari here. Find out more about the case here.
Scott Day Freeman is a Senior Attorney at the Goldwater Institute.
