The Goldwater Institute and the nation are honoring a great public servant and defender of liberty after the passing of former Arizona Sen. Jon Kyl. In addition to serving in Congress for more than 26 years, Sen. Kyl helped found the Goldwater Institute in 1988 and remained a trusted friend and advisor through the years as Goldwater grew into a national champion for freedom.
After first serving in the U.S. House, Sen. Kyl was elected to the Senate in 1994 and served three terms, rising to become the Republican whip, the party’s second-ranking member. He returned to the Senate briefly in 2018 after the death of Sen. John McCain. Throughout his political career, Sen. Kyl earned a reputation as a serious lawmaker and principled leader who viewed public service as a responsibility centrally aimed at defending liberty.
“The Goldwater Institute would not be the organization it is today without Jon Kyl and the leadership he demonstrated during his more than 26 years of public service,” Goldwater Institute President and CEO Victor Riches said.
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Everybody knows the First Amendment protects free speech, but it does a great deal more than that—including protecting your right not to join an organization or to fund its advocacy. This week, Goldwater attorneys and their American Freedom Network partners appeared at the Tenth Circuit Court of Appeals to defend the First Amendment right of an Oklahoma attorney not to join his state bar or pay dues that fund speech he fundamentally opposes.
Oklahoma is one of more than 30 states that prohibit attorneys from practicing law unless they join the state bar, a trade association for lawyers. The Oklahoma Bar Association’s leaders use their members’ mandatory dues to publish a magazine where they weigh in on a variety of topics—prison litigation reform, election-integrity laws, and even “Oklahoma’s embrace of the white racial identity”—that have nothing at all to do with regulating the legal profession. The problem is that Oklahoma attorney Mark Schell doesn’t want to lend his name or pay money to promote causes he opposes, and the First Amendment means he doesn’t have to give up his career because of that.
The case was argued Thursday by Jones Day attorney John C. Brinkerhoff Jr., a member of Goldwater’s American Freedom Network of pro-bono lawyers. “The First Amendment almost entirely prohibits states from forcing individuals to associate with expressive groups,” he told the court. “Mandatory state bar associations are a rare exception, but they can force expressive association with only speech germane to regulating the legal profession and improving the quality of legal services available to the people of the state.”
With the help of AFN lawyers like Brinkerhoff, the Goldwater Institute will continue to fight to ensure that no one is forced to fund speech they disagree with simply to work in their chosen field.
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It’s an unfortunate reality: the law can be on your side, but you can still lose in court if the procedural rules are stacked against you. That’s why the Goldwater Institute applauds the Arizona Supreme Court for adopting a rule change affecting public records cases and some “special” lawsuits that will ensure increased government transparency.
The issue involves revamped rules for certain cases that are called “special actions”—lawsuits authorized by the Legislature. Arizona’s Rules for Procedural Special Actions were recently revamped and modernized, mostly for the better. But during that revamp, a few details from the prior set of rules were inadvertently lost. That resulted in some confusion among lawyers and judges about the kinds of questions and cases that could come before the courts and the ability of courts to meaningfully scrutinize the decisions of government officials in public records cases. The Arizona Supreme Court’s amendment to the rule brings much needed clarity.
Citizens deserve to know what the government is up to. They also deserve fair court rules that respect constitutional limitations. The Arizona Supreme Court’s rule change, which was backed by Goldwater, is a victory on both fronts.
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