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Goldwater Institute asks U.S. Supreme Court to protect attorneys’ First Amendment rights

December 15, 2017

Phoenix—Today, the Goldwater Institute has asked the United States Supreme Court to take a case to help protect attorneys’ right to free speech—including their right not to speak.

Arnold Fleck is one of those attorneys. Because he is a lawyer, his home state of North Dakota requires him to join the state’s Bar Association and pay mandatory member dues. As a result, he was forced to fund political speech that he strongly disagreed with. Fleck had taken a public stance in favor of a state measure regarding child custody cases, but the State Bar Association of North Dakota was using his member dues without his knowledge or permission to help fund a $50,000 campaign against the same measure. In August, the United States Eighth Circuit Court of Appeals ruled against North Dakota attorneys’ First Amendment rights, upholding the state Bar Association’s practice of requiring attorneys to opt out if they do not want to fund speech they disagree with.

The Supreme Court has ruled against similar compelled speech in the past, and in filing a petition for certiorari, the Goldwater Institute is asking the Supreme Court to do so again. “The Supreme Court has said that organizations that have the privilege of taking money involuntarily have the responsibility to have procedures in place to protect members, but the State Bar Association of North Dakota totally ignored that responsibility,” said Jim Manley, senior attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Jurisprudence. “Although the Goldwater Institute sued and forced them into compliance with the most basic protections, the Bar Association still assumes lawyers want to fund political speech. That puts a burden on free speech, and leads to abuses like the one that caused this lawsuit. And every other mandatory Bar Association in the country continues to ignore its duty to protect its members’ rights.”

The Goldwater Institute’s petition to the Supreme Court asks the Court to require Bars to let members opt-in to political spending, and asks the Court to strike down laws that require attorneys to join a Bar Association. “It is time that the Supreme Court ended mandatory Bar Associations. Lawyers can be forced to get a license and pay for the cost of regulation, but it is unconstitutional to force them to join a Bar Association to achieve those goals. At the very least, mandatory Bars should have to ask before they spend member money on political speech.”

The right not to speak is an essential part of Americans’ First Amendment rights, and the Goldwater Institute strongly defends those rights across the country. Earlier this month, the Institute joined with organizations in California, Massachusetts, and elsewhere, to file an amicus brief in Janus v. American Federation of State, County, and Municipal Employees (AFSCME). Currently before the U.S. Supreme Court, this case will determine government employees’ ability to decide for themselves whether or not to give money to a union, rather than simply being forced by state law to pay member fees.

Read more about Fleck v. Wetch here.


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.



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