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Supreme Court Should Rule on Violation of Lawyers’ Free Speech Rights

February 18, 2020

February 18, 2020
By Timothy Sandefur

This month, we’ve asked the U.S. Supreme Court to once again take up the case of Arnold Fleck, the North Dakota attorney whose First Amendment rights have been violated for years by state laws forcing him to join and to pay annual dues to the State Bar Association of North Dakota (SBAND).

Bar associations like SBAND aren’t to be confused with the bar exam, which is the licensing requirement lawyers must satisfy. Bar associations are clubs—trade associations that engage in a wide variety of activities, including lobbying the government. Fleck argues that forcing him to join SBAND violates his freedom of association, and forcing him to pay it annual dues—which in the past it has spent on political campaigns as well as lobbying—violates his free speech rights. A federal appellate court ruled against Fleck in 2018, holding that he can be forced to join SBAND and that requiring him to pay dues is okay, as long as he has a chance to get a refund of the portion of his dues that’s spent on politics.

Fleck appealed to the Supreme Court, which only months later announced its ruling in the Janus case, which held that the Constitution forbids states from forcing public employees to join unions, and also that people have a constitutional right to decide whether to contribute to their political spending—and that the mere option of a refund isn’t good enough. Days later, the justices took up Fleck’s case, but rather than hear arguments, they ordered the lower court to reconsider its original ruling in light of the Janus decision.

Unfortunately, last summer, that court ruled against Fleck a second time, concluding that Janus has no applicability, and that a 1990 Supreme Court decision called Keller permits states to force lawyers to join bar associations. It also didn’t decide whether the refund option is adequate, because it said lawyers are voluntarily choosing to support SBAND’s political activities when they write out checks to the Association.

In our second petition to the Supreme Court, we’ve asked the justices to decide whether the 1990 Keller decision should be overruled and also whether the Janus rule that people must be given the choice at the outset—rather than merely being given the option of a refund—is satisfied merely by the fact that lawyers are required to write out checks when they send in their annual dues payment. And several of the nation’s leading civil rights organizations have joined in our petition, filing friend of the court briefs that urge the Court to take the case.

The Pacific Legal Foundation, the Cato Institute, and the Atlantic Legal Foundation filed a brief pointing out that groups like SBAND engage in “pervasive” political activities that go far beyond what most people imagine when they think of bar associations. Rather than merely ensuring that lawyers have the educational tools they need, or practice law in an ethical and competent manner, state bars engage in political activities by defining their missions as broadly as possible. It notes, for example, that California’s bar defined the “administration of justice” so vaguely that it lobbied the legislature on bills relating to gun rights, abortion, public school prayer, and environmental regulation. In other words, even though that 1990 Keller case made clear that state bars may not spend money on ideologically charged activities, they continue to do so.

The 1889 Institute of Oklahoma filed a brief pointing out that the same is true in that state: “Nakedly political and ideological speech,” they observe, is published in that state bar’s official magazine, “funded by compulsory dues.” These include (factually false) statements about politically controversial Supreme Court rulings such as Citizens United. And the bar has mobilized petition drives and rallies, as well as lobbying the state legislature, on contentious proposals regarding how the state appoints judges. The bar excuses this by saying such proposals relate to the practice of law—and they do—but that’s no justification for spending dues on a political campaign.

The Liberty Justice Center of Illinois’s brief argues that such consequences are inevitable given the broad and vague wording of the 1990 Keller decision. Since First Amendment rights are involved, laws that require lawyers to support state bars should be subject to the stringent First Amendment test that requires such laws to be “narrowly tailored” to advance a “compelling state interest.” But improving the quality of legal services, the Center argues, is not a compelling interest—instead, it’s “a loophole so large that mandatory bars drive truckloads of politically charged ideology right through it.”

And the National Right to Work Legal Defense Foundation takes a broader view of the whole case, observing that several states are actively engaged in resisting implementation of the Janus ruling—and arguing that the Court should take up Fleck’s case to make clear that states must comply with that decision.

We’re hoping the Supreme Court will take up the case of Arnold Fleck—and of thousands of lawyers who are today forced to join these private trade associations and to subsidize what’s often their politically charged activities.

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



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