Victory! Ninth Circuit Allows Goldwater Challenge to Compulsory Bar Membership to Proceed

February 26, 2021
By Timothy Sandefur

The Ninth Circuit Court of Appeals today in a unanimous decision declared that a Goldwater Institute lawsuit against Oregon’s mandatory bar association can proceed to trial. The case, brought on behalf of lawyers who object to being forced to join the association and fund its politically oriented publications, had been thrown out by a trial court judge who concluded that Supreme Court precedent allows states to require bar association membership. But the Court of Appeals today reversed that decision, holding that the question of whether the government can force lawyers to join bar associations that engage in political and ideological speech that isn’t related to regulating the practice of law—is “an issue that neither the Supreme Court nor we have ever addressed.”

Forcing lawyers to join bar associations has been controversial for decades. In a 1961 case called Lathrop, the Supreme Court was so sharply divided on the question that the justices failed to publish a majority opinion. Four of them declared mandatory bar membership was constitutional, but did so by relying on cases that said it was constitutional to force people to join labor unions—a position the Supreme Court later abandoned. Thirty years later, in a case called Keller, the Court again failed to answer whether lawyers can be forced to join bar associations that engage in political and ideological activities that aren’t related to regulating the practice of law or improving the quality of legal services.

Nevertheless, many states still require lawyers to join bar associations and pay them dues if they want to practice law. Many lawyers object to this, since bar associations often take political positions that lawyers disagree with and don’t want to be forced to fund (to the tune of several hundred dollars a year). The First Amendment protects a person’s right to associate—or not to associate—yet state bar associations often disregard this right entirely, using mandatory dues to fund partisan political activities. The Oregon State Bar, for example, often publishes partisan statements in its monthly Bulletin—and does so with money taken from lawyers against their will.

As today’s Ninth Circuit decision puts it,

The First Amendment protects the basic right to freely associate for expressive purposes; correspondingly, “the right to eschew association for expressive purposes is likewise protected.” Freedom from compelled association protects two inverse yet equally important interests. First, it shields individuals from being forced to “confess by word or act their faith” in a prescriptive orthodoxy or “matters of opinion” they do not share. Second, because “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” freedom from compelled association checks the power of “officials, high or petty, [to] prescribe what [opinions] shall be orthodox.” In short, like the “freedom of belief,” freedom from compelled association “is no incidental or secondary aspect of the First Amendment’s protections.” Plaintiffs’ freedom of association claim based on the April 2018 Bulletin statements is viable.

The Goldwater Institute is representing the plaintiffs in the case together with attorney Luke Miller, a member of Goldwater’s pro bono program, American Freedom Network. Goldwater has filed similar lawsuits in North Dakota, Louisiana, and Oklahoma challenging the constitutionality of mandatory bar associations. (The Louisiana lawsuit is scheduled for argument in the Fifth Circuit Court of Appeals next week.) Today’s decision makes clear how important are the constitutional rights at stake.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.