Coalition Brief Again Supports Exacting Scrutiny of Mandatory Bar Dues Used To Fund Political or Ideological Speech
The Atlantic Legal Foundation has joined the Pacific Legal Foundation, Cato Institute, and Reason Foundation in an amicus brief urging the Supreme Court to decide whether dues used by state bar associations to subsidize political and ideological speech are subject to exacting scrutiny under the First Amendment. Many state bar associations, which attorneys are required to join in order to practice law, use their members’ mandatory dues payments to subsidize political or ideological speech. The certiorari petition, which challenges such activities undertaken by the Oklahoma Bar Association, provides examples such as advocating for or against certain legislation and publishing articles in its won magazine criticizing particular Supreme Court opinions, proposals to alter the State’s method of selecting judges, and other subjects about which bar members may have sharply differing views. The petition, sponsored by the Goldwater Institute, argues that in light of a Supreme Court opinion holding that compulsory public-sector union dues are subject to exacting scrutiny, Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), mandatory bar dues should be subject to the same stringent rule. Pacific Legal Foundation, Cato Institute, and Atlantic Legal Foundation filed an amicus brief in June 2021 urging the Supreme Court to review the same question in Crowe v. Oregon State Bar. The Court, however, denied review. Now the same coalition is urging the Supreme Court to grant certiorari in the Oklahoma case. The coalition’s amicus brief, drafted by Deborah La Fetra, Senior Attorney at the Pacific Legal Foundation, discusses the manner in which mandatory bar associations engage in member-funded expressive activity reflecting the political or ideological views of only a subset of members, and why such activity should be subject to exacting scrutiny under the First Amendment. The amicus brief also notes that there are many voluntary-membership professional organizations available to attorneys who wish to express political or ideological views collectively.
Schell v. Darby, Chief Justice, Supreme Court of Oklahoma, No. 21-779 (petition stage)
Read the Amicus Brief:
Are mandatory bar dues that subsidize the political and ideological speech of bar associations subject to “the same constitutional rule” of exacting First Amendment scrutiny that applies to compulsory union fees under Janus?
The Petition For a Writ of Certiorari was denied on April 4, 2022.
Lawrence S. Ebner, Executive Vice President & General Counsel, Atlantic Legal Foundation
Date Originally Posted: December 21, 2021