SAN FRANCISCO — A recent decision by the 9th U.S. Circuit Court of Appeals has significant implications for mandatory professional memberships, particularly for lawyers in the Oregon State Bar. The court found the bar’s required membership infringes on lawyers’ freedom of association, particularly taking issue with the group’s publication that seemed to express collective agreement with political statements.
The controversy began with the April 2018 issue of the Oregon State Bar’s Bulletin magazine, which featured statements condemning former President Donald Trump and appeared to align all bar members with those views. This action led to a lawsuit spearheaded by attorney Daniel Z. Crowe and other bar members, supported by the Goldwater Institute, asserting that mandatory association with these statements violated their First Amendment rights.
In its ruling, the 9th Circuit highlighted that the Oregon State Bar could continue its functions without necessarily speaking for all its members. The court suggested remedies such as the use of disclaimers in publications or redefining members simply as “licensees,” proposals aimed at clarifying that the expressed views do not reflect the opinions of all associated lawyers.
The appellate court’s judgment underlined that while the bar’s activities primarily relate to regulating the legal profession, which includes promoting access to justice and rule of law, it overstepped by conveying a semblance of unanimity among its diverse members on political matters.
The case initially revolved around not only the freedom of association but also free speech claims. In a previous 2021 verdict, the 9th Circuit had dismissed the free speech complaints, referencing the Supreme Court’s 1990 Keller v. State Bar of California decision. The Keller decision states that mandatory bar dues can subsidize activities pertinent to legal profession regulation without infringing free speech, provided there is a mechanism to reimburse dues utilized for non-germane activities.
This prior dismissal laid the foundation for the plaintiffs’ renewed focus on the violation of their associative rights, a claim that the recent ruling substantiates by indicating undue political and ideological advocacy by the bar.
The panel, led by Judge Michelle T. Friedland, an Obama appointee, acknowledged that while the bar refunded the costs linked to the controversial publication, the broader issue of compulsory membership in connection with ideological stances required rectification.
Legal professionals across the spectrum have reacted to the court’s decision, viewing it as a pivotal moment for professional governance and the protection of individual rights within mandated associations. Scott Day Freeman, a senior attorney at the Goldwater Institute, lauded the judgment for affirming the rights of attorneys to refrain from endorsing speech through compulsory association.
The case, which now returns to a lower court for a determination on the appropriate remedy, continues to set a significant precedent in the conversation around the bounds of compulsory professional memberships and the scope of their advocacy. As it unfolds, the legal community and professional associations nationwide are watching closely, recognizing the broader implications for organizational policies and individual member rights.