The Oklahoma Bar Association’s magazine has a lot to say about a lot of things—prison litigation reform, critiques of election-integrity laws, and even “Oklahoma’s embrace of the white racial identity.” But none of that has anything to do with regulating the legal profession. That’s why Goldwater Institute attorneys and our American Freedom Network partners are heading back to the U.S. Court of Appeals for the Tenth Circuit to argue that Oklahoma attorneys shouldn’t be forced to associate with the bar or pay dues to fund speech they don’t support.
John C. Brinkerhoff Jr.—a member Goldwater’s American Freedom Network of pro-bono, freedom-fighting attorneys—is arguing the case at the Tenth Circuit on Thursday. He and his Jones Day colleague, Anthony Dick, are former clerks to U.S. Supreme Court Justice Samuel Alito and are the appellate attorneys who authored the seminal case on the right to work without being forced to fund labor organizations.
Brinkerhoff is defending the First Amendment rights of Mark Schell, an Oklahoma attorney who is barred by the state from practicing law unless he joins the Oklahoma bar, a trade association for lawyers. He’s also required by the state to pay dues that fund political speech published in the Oklahoma Bar Journal that he’s never agreed to support.
Mark has two choices: lend his name and money to causes he opposes or give up his career. But the First Amendment doesn’t require him to make that choice.
The First Amendment protects more than the right to speak. It also protects your right to refuse to join an organization that takes positions you reject and the right to refuse to pay for their advocacy. The U.S. Supreme Court made that clear in Janus v. AFSCME, ruling that government workers can’t be forced to fund a union. The same principle applies to lawyers being forced to subsidize a bar association.
The problem comes down to a legal test called “germaneness.” This standard limits mandatory dues to activities genuinely tied to regulating the profession. But the Oklahoma bar has stretched that idea so that any political cause can be described as somehow good for lawyers or the law. Even worse, the court invented exceptions with no basis in First Amendment law. Goldwater is asking the Tenth Circuit to correct these errors.
This case matters far beyond Oklahoma. In 32 states, attorneys are forced to join trade associations as a condition of practicing law even though the First Amendment prohibits this. A ruling in Mark’s favor in the Tenth Circuit could establish critical precedent on whether attorneys can be forced to associate with political speech they oppose. A favorable decision can also create broader protections for the right to associate for other occupations and professions.
Goldwater has already secured a win on this issue in the Fifth Circuit Court of Appeals. But these wins aren’t possible without lawyers willing to bring them.
That’s the exact need that the Goldwater Institute’s American Freedom Network fills. AFN attorneys volunteer their legal talents and work alongside the Institute’s Scharf-Norton Center for Constitutional Litigation to defend liberty in courtrooms across the country. Goldwater matches high-stakes cases with quality lawyers who have the skill and conviction to litigate them.
Schell is that model in action.
“Cases like Schell represent the kinds of opportunities that are available for American Freedom Network members,” said Anthony Dick of Jones Day. “Liberty-loving attorneys around the nation should jump at the chance to argue a landmark First Amendment case at the federal appellate court and help shape constitutional law.”
Freedom doesn’t defend itself. But the Goldwater Institute can’t do it with the help of the American Freedom Network’s talented attorneys.
Click here to learn more about and join Goldwater’s American Freedom Network. Click here to learn more about the Schell case and to read case documents.
Stacy Skankey is the Goldwater Institute’s American Freedom Network Litigation Director.
