August 1, 2019 By Jacob Huebert, James Baehr, and Dane S. Ciolino
The
First Amendment guarantees every American’s freedom of speech and freedom of
association. That means we all get to choose what we will and won’t say, and
what groups we will and won’t join. It also means we all get to decide to what
political groups we will and won’t give our money.
At least, that’s how it’s supposed to work. But, in Louisiana and 29 other states, some people—those who practice law—are being denied their rights not to speak, not to associate with a group against their will and not to pay for others’ political advocacy. In these states, the government forces lawyers to join and pay dues to bar associations to be allowed to pursue their chosen profession.
The
bar associations these lawyers are forced to join and pay aren’t government
regulatory bodies; they don’t just make sure attorneys are qualified and behave
ethically, as one might expect. Instead, they’re trade associations, and all
too often they use members’ mandatory dues to advocate for and against public
policies, which may or may not have anything to do with the practice of law. This
means lawyers in these states are being forced to pay for other people’s political
and ideological speech—something the First Amendment virtually never allows.
For
example, Louisiana’s mandatory bar association has used members’ dues to advocate
for removal of “free enterprise” education from the state’s high school
curriculum requirements. It’s also taken positions on a wide variety of other
controversial issues ranging from the death penalty to drug policy to social
issues. Many Louisiana lawyers might disagree with positions the bar takes—but
they have to pay to promote the bar’s views anyway, if they want to continue earning
their living by practicing law.
There’s
no excuse for this. Today, at least 18 states regulate lawyers without forcing
them to join a bar association or pay for other people’s politics. Louisiana
and all the other states could—and should—do so as well.
Randy
Boudreaux is one New Orleans lawyer who doesn’t want to pay for a bar
association’s political advocacy—but has no choice. Today, lawyers from the
Pelican Institute and the Goldwater Institute joined with New Orleans ethics
lawyer and professor Dane S. Ciolino to file a federal
lawsuit for Boudreaux. In the lawsuit, they argue that forcing Boudreaux to
join and pay dues to the Louisiana State Bar Association violates his basic
First Amendment rights to freedom of speech and association.
Last
year, in Janus v. AFSCME, the U.S.
Supreme Court ruled that the First Amendment prohibits governments from making their
employees pay union fees—which inevitably fund unions’ political speech—just to
keep their jobs. By the same reasoning, Boudreaux’s lawsuit says, lawyers
shouldn’t be forced to pay for bar associations’ speech just to do their jobs.
Boudreaux
is the latest of an increasing number of attorneys across the country who are
standing up for their free-speech rights. In North Dakota, attorney Arnold
Fleck, represented by the
Goldwater Institute, sued to challenge his state’s mandatory bar after he
learned that it used $50,000 of members’ mandatory dues to oppose a ballot
measure on child-custody reform that he’d spent his own time and money
supporting. The U.S. Court of Appeals for the Eighth Circuit ruled against him
in 2017, but last December, the Supreme Court ordered the Eighth Circuit to
reconsider its decision in light of Janus.
Meanwhile,
the Goldwater Institute is also representing attorneys in Oregon and Oklahoma who object
to their states’ respective mandatory bars. Additional challenges to mandatory
bar associations are underway in Texas and Wisconsin as well.
The
Pelican Institute has led the fight for workers’ speech rights and economic opportunities
in Louisiana, pressing a broad Jobs and Opportunity agenda across the state.
The Institute is continuing the fight with this year’s launch of the Pelican
Center for Justice, a public interest law firm dedicated to advancing liberty
in the courtroom in Louisiana and throughout the region.
Randy
Boudreaux and the other lawyers challenging bar associations’ forced fees
should prevail. And ultimately, the Supreme Court should hear one of their
cases and declare that lawyers have the same First Amendment rights as everyone
else.
Jacob Huebert is a Senior Attorney at the Goldwater Institute. James Baehr is General Counsel at the Pelican Institute for Public Policy. Dane S. Ciolino is an ethics lawyer and professor of law at Loyola University New Orleans College of Law.
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