Even lawyers are entitled to First Amendment protection

December 03, 2018 | By DEBORAH LA FETRA

In Fleck v. Wetch, North Dakota lawyer Arnold Fleck seeks to be free from his forced association with the State Bar Association of North Dakota. After considering his petition for writ of certiorari at eight consecutive conferences, the Supreme Court today granted the petition, vacated the decision below, and remanded for reconsideration in light of Janus v. AFSCME. This is a very important development because Fleck raises issues that were alluded to, but not decided, in Janus, and it does so in the context of a mandatory bar association rather than a public sector union.

Janus holds that the First Amendment prohibits states from giving public employee unions the special privilege of docking the wages of non-union members to support the unions’ collective bargaining and other political activities, without those workers’ consent. “When speech is compelled,” the Court explained, “individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning” and undermines “our democratic form of government.” Thus, allowing states to force non-union members to support union priorities against their own consciences violates the First Amendment and the basic principle that “‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’” (quoting Thomas Jefferson).

PLF, which has long supported attorneys’ efforts to refrain from subsidizing the political and ideological activities of state bar associations, filed an amicus brief supporting Fleck’s petition. Like Janus, this case seeks to overturn outdated Supreme Court decisions that permit significant infringement on First Amendment rights. The Supreme Court approved statutes that force attorneys into centralized, government-run bar associations in a 1961 case, Lathrop v. Donohue, and reiterated the holding in dicta in Keller v. State Bar of California (which presented a direct challenge only to subsidization of politicking, not to forced association for general regulation purposes). The Court made certain assumptions when it decided those cases, among them that state bar associations were well-suited to competently regulate the legal profession. Whatever may have been the case in 1961, subsequent years have not borne out that ideal. Just as Janus recognized that the premises underlying Abood v. Detroit Board of Education reflected an unrealistic view of public employee unions, Fleck presents an opportunity for judicial recognition that Lathrop and Keller also failed to appreciate the increasing and pervasive politicization of mandatory state bar associations, and overestimated the ability of a the mandatory associations to be careful stewards of mandatory dues.

The bar association cases and the union subsidization cases are closely bound and frequently cite each other. Janus cannot be distinguished simply because it arose in the union context. Therefore, the Fleck remand requires the Eighth Circuit Court of Appeals to determine how the overall principles enunciated in Janus apply to the concept of exclusive representation as it manifests in the mandatory bar context. Janus did not directly address the non-union employees’ challenge to the exclusive representation statute, which requires the union to bargain on behalf of both members and nonmembers and prevents nonmembers from negotiating the terms and conditions of their employment directly with their employer. The First Amendment principles outlined in Janus, however, demand that no one should be forced into associations as the price of earning a living, including attorneys.