Goldwater Institute Wins Victory for Free Speech at the U.S. Supreme Court

December 3, 2018

Phoenix—In one of the first major victories for First Amendment rights in the wake of 2018’s path-breaking Janus decision, the U.S. Supreme Court today threw out a lower court ruling that allowed states to force lawyers to subsidize state bar associations. Without issuing a full opinion, the justices ordered the lower court to reconsider its holding in Fleck v. Wetch, in light of the Janus case, which held that government must get consent from workers before it compels them to subsidize trade associations such as labor unions.

The plaintiff, North Dakota lawyer Arnold Fleck, filed suit in 2015 to challenge a law that requires North Dakota attorneys not only to pass the state’s bar exam, but also to join the state bar association and pay member dues that the association uses to support political activities. Although 18 states—including one of the largest, New York—do not require attorneys to join bar associations, North Dakota does, and because the association spends dues on political campaigns, Fleck found himself in the same position as the teachers in the Janus case: forced to subsidize political activities he did not support. In fact, after Fleck had publicly supported, and contributed money to, a state ballot measure relating to child custody cases, he discovered that the bar association used his member dues to help fund a $50,000 campaign against the same measure.

In August 2017, a federal Court of Appeals ruled against Fleck, holding that the bar association was complying with the law by allowing attorneys to opt out if they did not want to fund speech they disagreed with. Shortly afterwards, the Supreme Court announced in Janus that allowing a person to opt out isn’t enough. Instead, the First Amendment requires that a person be asked before his or her money is taken to subsidize a political campaign.

The Goldwater Institute filed a petition for certiorari in Fleck’s case in December, asking the Supreme Court to decide whether the North Dakota rules comply with the standards required by the Janus decision. Today, the high court agreed, ruling in favor of Fleck and ordering lower courts to reconsider the case in light of the First Amendment.

“This is an important first step towards extending Janus protections to attorneys,” said Goldwater Institute Senior Attorney Jacob Huebert, who was on the legal team that won the Janus case. “The same principles apply here that applied there: The government can’t take people’s money to pay for other people’s political speech without asking first.”

“This is a major victory, not just for Arnold Fleck but for attorneys like him across the nation who have been forced to fund speech they don’t agree with. North Dakota’s take-first, ask-afterward approach violates the First Amendment, which says that people should be able to voluntarily opt in to political speech,” Goldwater Institute Vice President for Litigation Timothy Sandefur said.

“We look forward to the opportunity to our next hearing in the Eighth Circuit,” said Sandefur. “The command of the First Amendment is clear: Neither government employees nor lawyers nor anyone else can be forced by the government to support speech they disagree with.” (You can read more from Sandefur on today’s announcement on In Defense of Liberty.)

Read more about Fleck v. Wetch here.

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About the Goldwater Institute

The Goldwater Institute drives results by working daily in courts, legislatures and communities to defend and strengthen the freedom guaranteed to all Americans in the constitutions of the United States and all 50 states. With the blessing of its namesake, the Goldwater Institute opened in 1988. Its early years focused on defending liberty in Barry Goldwater’s home state of Arizona. Today, the Goldwater Institute is a national leader for constitutionally limited government respected by the left and right for its adherence to principle and real world impact. No less a liberal icon than the New York Times calls the Goldwater Institute a “watchdog for conservative ideals” that plays an “outsize role” in American political life.