Amicus Brief Urges Supreme Court To Review Constitutionality of Mandatory Bar Dues That Subsidize Political Speech
The Atlantic Legal Foundation has joined the Pacific Legal Foundation and Cato Institute in an amicus brief urging the Supreme Court to grant certiorari in Crowe v. Oregon State Bar, No. 20-1678, and address the question of whether a state law that forces Oregon attorneys to pay Oregon State Bar dues used in part to subsidize political or ideological speech violates the First Amendment. The same three organizations filed a joint amicus brief in December 2019 urging the Court to review essentially the same issue in Fleck v. Wetch, No. 19-670, a case challenging payment of mandatory dues to the North Dakota Bar. Although the Court declined review in Fleck, the mandatory bar association dues issue now presented in Crowe affects attorneys in at least 30 States.
Lawrence S. Ebner, Atlantic Legal Foundation’s Executive Vice President & General Counsel, commented that
Lawyers, like all U.S. citizens, enjoy freedom of speech and freedom of association under the First Amendment. They should not be forced to pay bar dues used to subsidize political speech as a precondition for practicing law. The Supreme Court should address this issue and hold that such dues are subject to strict judicial scrutiny under the First Amendment.
Quoted by Law360 in an article about the amicus brief, Mr. Ebner stated that
compelling lawyers to pay dues that subsidize their state bar associations’ political or ideological advocacy not only violates their members’ First Amendment rights, but also undermines the high professional standards that state bar associations are supposed to represent.
Crowe v. Oregon State Bar, No. 20-1678 (Supreme Court) (petition stage)
Read the Amicus Brief:
Oregon requires attorneys to join and pay dues to the Oregon State Bar as a condition of practicing law. The Oregon State Bar uses members’ mandatory dues to fund political and ideological speech regarding issues of law and public policy. Is the statute that compels attorneys to subsidize Oregon State Bar’s political and ideological speech subject to “exacting” scrutiny under the First Amendment?
The petition for a writ of certiorari argues that “The constitutional problems raised by forcing
lawyers to subsidize the speech and lobbying of bar associations is a question of immense importance
throughout the country.” According to the petition, two Supreme Court precedents — Janus v. AFSCME, 138 S. Ct. 2448 (2018) (holding that laws forcing public employees to fund the political speech and lobbying activities of a public sector union were subject to exacting scrutiny) and Keller v. State Bar of California, 496 U.S. 1 (1990) (holding that there was “a substantial analogy” between mandatory bar associations and unions when it comes to First Amendment principles) — lead to the conclusion that mandatory bar association dues used to fund political or ideological speech are unconstitutional.
ALF’s Amicus Brief:
The joint amicus brief, authored primarily by Deborah J. La Fetra, Senior attorney at the Pacific Legal Foundation, argues that numerous mandatory bar associations engage in pervasive political and ideological activities, and that compulsory payment of dues to such associations in order to practice law in a State should be subject to “exacting” First Amendment scrutiny. The amicus brief further explains that “Whether attorneys reside in states with mandatory bar associations or not, they all may choose to support an array of voluntary bar associations that engage in advocacy, such as the American Bar Association, the Association of Corporate Counsel, the American Association for Justice, and DRI—The Voice of the Defense Bar. Attorneys may also support more general associations to pursue their political ideological goals such as Amici organizations.”
The petition for a writ of certiorari was docketed on June 2, 2021 and is pending.
Date Originally Posted: June 30, 2021