Janus Protects Lawyers’ Free-Speech Rights, Too

by Timothy Sandefur

February 18, 2019

We filed our opening brief Friday in our challenge to the constitutionality of North Dakota’s rule that requires attorneys to join the state bar association as a condition of practicing law. It’s actually our first brief after the U.S. Supreme Court ordered the Eighth Circuit Court of Appeals to reconsider its previous decision in light of the Janus ruling.

We represent Arnold Fleck, a North Dakota lawyer who discovered that the state bar he’s forced to be a member of spent bar dues he’s forced to pay to subsidize a campaign against a ballot initiative that Fleck himself supported. In other words, state law was forcing him to join and to fund an organization that was publicly opposed to the political views he himself holds. He argued that this violated the First Amendment, which forbids the government from compelling people to join political organizations—and bars the government from forcing people to subsidize political campaigns.

The Eighth Circuit ruled against Fleck, upholding both the mandatory membership requirement and the state bar’s billing practices—which allow members to deduct and withhold the portion of their annual dues that goes to the state bar’s political activities. But months ago, the U.S. Supreme Court reversed that decision and ordered the court to reconsider, given its recent ruling in Janus v. AFSCME. That decision not only reaffirmed existing rules against forcing people to join unions against their will, but also made clear that under the First Amendment, the government can’t compel workers to subsidize unions unless the workers “clearly and affirmatively consent before any money is taken from them.”

We argue that if that’s the rule, it must also be true of bar associations: The government can’t force a lawyer to join them or to subsidize them unless the lawyer clearly and affirmatively consent beforehand. Yes, the state can regulate the legal profession—it can impose a bar exam, and it can punish lawyers who do bad things—but it can do that without forcing lawyers to join a bar association. And it can’t presume that lawyers are willing to subsidize that association without getting the lawyers’ clear and affirmative consent beforehand.

That, however, isn’t what the North Dakota bar does. First, it forces lawyers to join, and then it sends them an annual bill that’s carefully designed to nudge lawyers into subsidizing the bar’s non-regulatory functions. The bill states a total that lawyers must pay—and then allows them to add certain “optional” expenses—and then later requires them to deduct the political expenditures as “optional,” too. By requiring them to add some optional expenses and deduct others, the bill is fashioned in a way that likely misleads many people into paying the political expenditures part of the bill—a highly misleading mechanism that violates the requirement for “clear” and “affirmative” consent.

In our brief to the Eighth Circuit, we argue that Janus makes clear why both the billing rules and the membership requirement violate the First Amendment: Being required to join an organization—whether a labor union or a bar association—violates freedom of association, and being required, or pressured, or fooled, into subsidizing that organization’s political activities isn’t the clear, affirmative, and prior consent that Janus requires.

The Fleck case matters not only because it involves the First Amendment rights of people like Arnold Fleck. It’s important because the organized bar exerts an extraordinary political influence in our society, at both the state and federal levels, much like government unions do. Yet, as with government unions, these mandatory bars don’t necessarily represent the actual views of the lawyers they claim to speak for. Because they can force lawyers to join, and then spend their annual dues in ways the lawyers themselves might not agree with, these organizations can distort the democratic process as well as violating the rights of attorneys.

You can learn more about the Fleck case here.

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