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Goldwater Institute Responds to Eight Circuit Court of Appeals Decision in State Bar Political Spending Case

September 12, 2017

Phoenix—The United States Eighth Circuit Court of Appeals today ruled against the First Amendment rights of North Dakota attorneys. The Goldwater Institute had filed the case, Fleck v. Wetch, on behalf of Bismarck attorney Arnold Fleck, after the State Bar Association of North Dakota failed to follow constitutionally required safeguards on using mandatory member dues for political activity. Instead of asking attorneys to opt in to political spending, the Bar Association assumes attorneys want to fund political speech unless they actively dissent.

“The First Amendment requires people to be allowed to voluntarily opt in to political speech, but in North Dakota—a state in which Bar Association membership is required to practice law—attorneys are being duped into funding the Bar’s political activity. This is a clear violation of a person’s right not to speak,” Jim Manley, senior attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, said.  “Imagine if your phone company slipped a lobbying charge into your bill, which you had to pay unless you noticed it and subtracted that amount from the check you send—no one would stand for that, yet it is exactly what the State Bar Association of North Dakota does to its members.”

Eighteen states – including New York, Colorado, Pennsylvania, and Massachusetts – do not force attorneys to join a bar association in order to practice law.  Attorneys that practice in those states are still subject to regulation, but they do not have to surrender their First Amendment rights in order to earn a living in their chosen profession.

“States should stick to the task of regulating the practice of law, not propping up special interest groups to undermine the First Amendment,” Manley continued.

The Goldwater Institute plans to appeal this decision to the United States Supreme Court.


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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