Victory! Federal Court Rules Oregon’s Mandatory Bar Violated 1st Amendment

You shouldn’t be forced to support speech you don’t agree with just to do your job—and a new Goldwater Institute victory in Oregon upholds that principle, marking a significant win for the freedom of association under the First Amendment.

On Wednesday, the U.S. Court of Appeals for the Ninth Circuit ruled that Oregon State Bar officials violated a conservative lawyer’s First Amendment rights when the Bar endorsed political statements critical of then-President Donald Trump and his supporters in a magazine funded by mandatory member dues. That was a bridge too far for Retired U.S. Army Lieutenant Colonel Daniel Crowe, a practicing Oregon lawyer, who disagreed with what was published but was nevertheless forced to pay dues to support it. The Goldwater Institute sued the Oregon State Bar and its officials on his behalf for violation of his constitutional rights.

Oregon is one of dozens of states where lawyers are forced by the government to join their state’s privately run bar associations. The Oregon State Bar Association uses its members’ dues to engage in a wide variety of activities, many of which have nothing to do with ensuring attorneys are qualified and behave ethically. Indeed, the Oregon Bar seems to believe its mission includes providing political commentary, expressing public policy preferences through lobbying, amplifying favored viewpoints through its publications, and promoting the latest social fads. But leaving the organization would mean you can’t practice your profession.

When Crowe and other Oregon lawyers protested the bar’s use of their funds to impugn President Trump and his supporters in its monthly magazine, the bar association sent them checks for about $1.12 each. The checks were meant to refund the amount of bar dues spent on its publication, when allocated to Oregon’s 10,000-plus licensed lawyers. To the bar, these checks would “cure” any claim that the mandatory bar violated the objectors’ First Amendment rights.

Crowe was unsatisfied and undaunted. With the Goldwater Institute’s help, he and others sued the Oregon State Bar and its officials for violating their rights of free association—a violation that cannot be “cured” with a small check. This week, Ninth Circuit held the bar association “engaged in nongermane conduct by adopting” the political statements critical of then-President Trump. Quoting prior U.S. Supreme Court precedent, the federal appellate court said these statements were not “necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal service available to the people of the State.” Thus, the bar association’s conduct infringed upon Crowe’s right of free association.

The Goldwater Institute will continue to challenge these unconstitutional requirements in states around the nation. After all, no one should have to pay for other people’s politics just to earn a living.

Read the Ninth Circuit’s ruling here, and read more about the case here.

Scott Day Freeman is a Senior Attorney at the Goldwater Institute.