The speech of lawyers is bound by strict ethics and court rules.
But can they be required to fund the political speech of private state bar associations in order to be allowed to work?
The Goldwater Institute is presenting that issue to a federal court in an effort to free lawyers from the mandatory funding.
The complaint is in U.S. District Court for the Western District of Oklahoma on behalf of Mark E. Schell, a lawyer “who has been forced to join and pay dues” to the Oklahoma Bar Association.
The case seeks an order “declaring mandatory bar membership and dues unconstitutional or, at a minimum, an order declaring that a bar association may not spend member dues on political speech without receiving a member’s clear, affirmative consent in advance.”
John Huebert, senior attorney for the institute, summarized the issue in a report on the organization’s website.
“Can the government make you pay for someone else’s political speech before it will let you work in a particular field?” he asked. “You might think not. Under the First Amendment, we all have the right to choose what speech we will and won’t support with our money. And the U.S. Supreme Court recently upheld that principle in Janus v. AFSCME when it ruled that governments can’t make their employees pay for unions’ political speech.”
He pointed out, however, that in a majority of states, lawyers “are forced to pay for others’ speech just to do their jobs.”
“In 32 states, all lawyers must join and pay dues to a state bar association,” he said. “And those bar associations can – and often do – use lawyers’ mandatory dues for political and ideological advocacy. Sometimes they lobby for and against state legislation; sometimes they support and oppose state ballot measures; and sometimes they publish political and ideological views in publications they send to their members.”
In Oklahoma, for example, the state bar has criticized Supreme Court rulings on the First Amendment, demanded more state regulation of the oil industry and called for more lawyers to be elected to state offices.
The association articles usually allow “no space” for the other side of the argument.
The Goldwater Institute noted the Oklahoma Bar Association hosted Jane Mayer, author of “Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right,” as the keynote speaker at its annual meeting.
The meeting took place just days before the 2016 general election. Mayer’s topic was the supposedly harmful influence of “wealthy conservative libertarians” on politics and the judiciary.
Goldwater said Schell is seeking to end a practice of more than 35 that forces him to pay dues to promote political views he opposes.
The lawsuit contends the dues requirement violates his First Amendment rights to freedom of association and freedom of speech.
The institute already has filed a lawsuit on behalf of client Arnold Fleck in North Dakota. The Eighth U.S. Circuit Court of Appeals has been ordered to re-hear the case following the Supreme Court’s Janus ruling.
In the Janus case, the court ruled government unions could not force employees to be members or fund their activities.
Goldwater also has a case in federal court in Portland, Oregon, on behalf of Daniel Crowe and Lawrence Peterson.
The institute said requirements that lawyers join and pay dues to a bar association “violate attorneys’ First Amendment right to decide what organizations they will and won’t associate with and what political speech they will and won’t pay for.”
“The U.S. Supreme Court has allowed governments to require attorneys to pay dues to a bar association – but only to pay for the bar association’s activities related to ‘regulating the legal profession and improving the quality of legal services,” the institute said.
“Now the court should go further and rule that the First Amendment prohibits states from forcing attorneys to join or pay money to a bar association at all. … Forcing attorneys to join and pay a union is wholly unjustifiable given that at least 18 states already manage to regulate the practice of law without violating attorneys’ rights in this way.”