No one should be barred from their profession simply for refusing to subsidize speech they disagree with. This month, after more than six years of litigation, the Goldwater Institute secured a victory for that key principle of economic liberty when the U.S. District Court in Oregon entered a final judgement in favor of two lawyers who argued that they shouldn’t be forced to support speech by the state bar that they disapprove of.
It began in 2017 when the Oregon State Bar—a glorified trade association Oregon-licensed lawyers are forced to join—published a lengthy statement in its flagship magazine associating then-President Donald Trump with violence and white nationalism. The bar’s statement bothered many lawyers in the state because their bar dues subsidized its publication and their compelled membership associated them with the message.
Daniel Crowe and Lawrence Peterson, retired U.S. Army lieutenant colonels and Oregon lawyers, objected. In 2018, Goldwater filed a lawsuit on their behalf and on behalf of Oregon Civil Liberties Attorneys, a group which included other like-minded Oregon lawyers. Crowe and Peterson argued that the bar violated their First Amendment rights because their mandatory bar dues and membership constituted “compelled speech” and “compelled association,” two things the government should not be able to force upon you absent a very good reason.
The bar claimed that all its actions, including its Trump statement, were justified because they pertained to the bar’s role in “regulating lawyers.” The U.S. District Court initially dismissed the complaint, but the Ninth Circuit Court of Appeals reversed that decision.
During the “discovery” phase of the lawsuit, Goldwater attorneys reviewed more than 100,000 pages of records and obtained testimony from bar officials. They discovered that the bar’s anti-Trump statement was hardly unusual—the bar regularly published materials with an ideological slant, all under the guise of “regulating lawyers.” Moreover, the bar lobbied for and against bills before the Oregon legislature, with the subject matter of many of those bills having nothing to do with the bar’s regulatory role. That means that Oregon lawyers, even those that might be members of the legislature itself—perhaps even bill sponsors—were forced to subsidize lobbying efforts that might work contrary to their personal views.
After the discovery phase, the U.S. District Court dismissed the case again. But Crowe and Peterson soldiered on and the case went to the Ninth Circuit for a second time.
In 2024—six years after the case was filed—the Ninth Circuit issued its opinion, holding that the bar violated Crowe and Petersons’ First Amendment rights when it published its anti-Trump statement. The case then went back to the U.S. District Court for further proceedings about the appropriate remedy.
But disputes continued in the remedies phase. The bar wanted any final judgment to include provisions that would insulate it from similar, future challenges through a “disclaimer” requirement; a kind of “get-out-of-jail-free” card. Essentially, the bar contended that it would cure any future First Amendment issues by stating that its actions were not necessarily the views of all its members, or “licensees.” But Goldwater and its clients fought on, insisting that the bar’s activities must be directly related and tailored to its claimed need to regulate lawyers—in their capacity as lawyers—and the proposed “disclaimer” could not have cured the plaintiffs’ injury. At last, the bar relented.
The victory not only vindicates Crowe and Peterson’s constitutional rights but sends a strong message to other states that require lawyers to join mandatory bar associations. Those associations should not, and cannot, act as trade associations that lobby and pontificate on fashionable issues unrelated to their strictly regulatory role.
Mandatory bar associations should know that the Goldwater Institute stands ready to challenge them if they do, and is ready for the fight, however long it takes.
Read more about the case here.
