The Hill: The First Amendment protects attorneys from compelled speech

Imagine being forced, as the price of doing business, to pay for a trade association’s speech on gun control, immigration, abortion, affirmative action, and many other hot-button political issues. That’s the situation attorneys in many states face just to do their jobs. Whether or not they agree with the bar association’s political and ideological views, attorneys must join and pay dues as a condition of being licensed to practice law.

The First Amendment is supposed to protect your right to speak freely and associate with whomever you like. It also should protect against being forced to pay for other people’s speech. As Thomas Jefferson once explained, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.”

To be sure, state bars serve a legitimate role, deciding who can practice as an attorney, how to handle attorney discipline, and the continuing education attorneys need. But when mandatory state bars combine these regulatory functions with political and ideological advocacy on issues far afield from the practice of law, as more than half the states currently allow, it infringes upon the First Amendment rights of attorneys who disagree with the messages these organizations advance.

Regrettably, the Supreme Court upheld the constitutionality of this arrangement in 1961. That ruling was assumed as an unchallenged predicate in 1990 in Keller v. State Bar of California, where our firm represented the petitioners. The Keller ruling, which focused on the procedures attorneys could use to avoid paying for the bar’s overtly political and ideological activities, built on the foundation of a 1977 decision, Abood v. Detroit Board of Education, that allowed states to force public employees who opted out of union membership to nevertheless pay “agency fees” to a public-sector union. The Supreme Court found the relationship between a state bar and its members analogous to a public-sector union and its members, holding that a state bar may “constitutionally fund activities germane to [its] goals” of “regulating the legal profession and improving the quality of legal services” using “the mandatory dues of all members.”

The court purported to restrict state bars from using compelled fees for political and ideological activities. Though our clients, led by Eddie Keller, won their fight against the California bar, in practice, bar associations have continued to engage in political and ideological battles while couching their involvement in innocuous-sounding phrases like “pursuing the administration of justice.” This veneer justifies the bars’ advocacy for a wide range of political and ideological issues ranging from felon voting to abortion to campaign finance restrictions.

In 2018, the Supreme Court overruled Abood in Janus v. AFSCME, acknowledging that it had failed to appreciate the inherently political nature of public-sector unions. Keller, likewise, did not recognize the pervasive politicization of integrated state bar associations that act as trade associations, and its foundation has crumbled. Forcing attorneys to subsidize a state bar’s political speech they disagree with is no less offensive to the First Amendment than forcing unwilling state employees to fund a public-sector union. The Supreme Court should harmonize its First Amendment jurisprudence across the context of compelled speech and revisit the Keller decision.

Unfortunately, the court recently declined review in such a case, Jarchow v. State Bar of Wisconsin, over the protest of Justices Clarence Thomas and Neil Gorsuch. In a statement dissenting from the Court’s order denying review, Justice Thomas explained, “Now that Abood is no longer good law, there is effectively nothing left supporting our decision in Keller. If the rule in Keller is to survive, it would have to be on the basis of new reasoning that is consistent with Janus.” He invites future challenges to resolve the inherent contradiction of Keller and Janus.

Writing for the majority of the Supreme Court in Janus, Justice Samuel Alito noted, “Forcing free and independent individuals to enforce ideas they find objectionable is always demeaning.” Attorneys shouldn’t have to choose between potentially losing their license to practice and financially supporting views with which they disagree. It’s disappointing that the court declined to take up this issue that affects “free and independent individuals” across the nation. But we will keep looking for more cases to bring, so in time, perhaps the Supreme Court will ensure that attorneys nationwide enjoy protection against compelled subsidization of speech.

This op-ed was originally published by The Hill on June 15, 2020.