Free Speech

Texas Lawyers Can't Be Required to Join the Bar, Because It Engages in Ideological Activities Not "Germane" to Regulating Legal Profession


So the Fifth Circuit just held in McDonald v. Longley, in an opinion by Judge Jerry Smith, joined by Judges Don Willett and Kyle Duncan. The court began by noting that

[In Keller v. State Bar (1990), the Supreme Court] held that state bar associations may constitutionally charge mandatory dues to "fund activities germane" to "the purpose[s] for which compelled association was justified," i.e., "regulating the legal profession and improving the quality of legal services." But state bar associations cannot constitutionally use mandatory dues to "fund activities of an ideological nature which fall outside of those areas of activity." … [Keller] did not decide whether lawyers may be constitutionally mandated to join a bar association that engages in other, nongermane activities….

The court then decided that question in the challengers' favor:

"[F]reedom of association is never mentioned in the United States Constitution." Instead, it is implicit in the other rights listed in the First Amendment. As relevant here, "[a]n individual's freedom to speak … could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed." Because the right to freedom of association is part of the freedom of speech, "[t]o determine whether a group is protected by the First Amendment's expressive associational right, we must determine whether the group engages in 'expressive association.'".

For groups that engage in expressive association, the "[f]reedom of association … plainly presupposes a freedom not to associate." Those groups have a right to restrict their membership, because the membership is the message. Individuals have an analogous right to "eschew association for expressive purposes." That right is part and parcel of the "cardinal constitutional command" that the government may not compel "individuals to mouth support for views they find objectionable."

Based on that, compelling a lawyer to join a bar association engaged in non-germane activities burdens his or her First Amendment right to freedom of association. Such a bar association would invariably be engaged in expressive activities. Even bar associations that engage in only germane activities undertake some expressive activities; for example, proposing an ethical rule expresses a view that the rule is a good one, and commenting on potential changes to the state's court system, … expresses a view that such a reform is a good or bad idea.

Bar associations that also engage in non-germane activities will almost certainly be engaging in additional expressive activities that "support … a particular conception of the good life or controversial ideology of the good society." And, when a bar association does so, part of its expressive message is that its members stand behind its expression. The membership is part of the message. Compelling membership, therefore, compels support of that message. If a member disagrees with that "conception of the good life or controversial ideology," then compelling his or her membership infringes on the freedom of association.

The court concluded that "Compelled membership in a bar association that is engaged in only germane activities survives [exacting] scrutiny" required for infringements on the freedom of association, but "Compelled membership in a bar association that engages in non-germane activities, on the other hand, fails exacting scrutiny." It concluded that the Texas Bar did indeed engage in some non-germane activities, alongside some germane ones:

Except as stated below, advocating changes to a state's substantive law is non-germane to the purposes identified in Keller. Such lobbying has nothing to do with regulating the legal profession or improving the quality of legal services. Instead, those efforts are directed entirely at changing the law governing cases, disputes, or transactions in which attorneys might be involved. Lobbying for legislation regarding the functioning of the state's courts or legal system writ large, on the other hand, is germane. So too is advocating for laws governing the activities of lawyers qua lawyers….

Applied to the Bar's 2019 legislative program, for example, that means that some lobbying was germane, but most was not. Many of the bills the Bar supported relate to substantive Texas law and are wholly disconnected from the Texas court system or the law governing lawyers' activities. For example, the Bar's lobbying to amend the Texas Constitution's definition of marriage and create civil unions is obviously non-germane. The Bar's presumably less-controversial proposed substantive changes to Texas family law are equally non-germane.

The Bar's lobbying for the "creation of an exemption regarding the appointment of pro bono volunteers," on the other hand, is germane, because it relates to the law governing lawyers. Its lobbying for changes to Texas trust law is germane to the extent the changes affect lawyers' duties when serving as trustees, and non-germane to the extent the changes do not.

And as a result,

In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in non-germane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York's; or Texas can adopt a hybrid system, like California's. {California has switched to a hybrid model in which core functions are performed by a mandatory state bar, while other functions previously performed by its "sections" are now done by a separate voluntary bar association.} But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.

NEXT: Fifth Circuit Enjoins Texas Integrated Bar From Requiring Plaintiffs To Pay Dues

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  1. “[F]reedom of association is never mentioned in the United States Constitution.”

    ” . . . or the right of the people peaceably to assemble . . . “

    1. Texas. sigh…

    2. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      I’d like it to be in there, but it isn’t. There’s a comma between “peaceably to assemble” and “petition the Government”. The concepts are separated by semicolons. The right to assemble is SO one can “petition the Government for a redress of grievances.”

      There’s no guaranteed right to associate in the 1st Amendment

      1. Your rights are not limited to what is written down.

        You have all the rights – including a right of association simply by virtue of being a human.

        The Constitution doesn’t list rights – it lists duties and authority of government. The BOR does not list *all* the rights – only the ones thought most important to protect.

        1. Entirely agree. That’s why I State the 1st doesn’t guarantee that right, rather than saying you don’t have that right

  2. Three clingers have spoken.

    1. Hey, Artie. This decision is another in a series of court defeats of the scumbag Commie cheaters you gloat about, just this week. Force people to recognize a fake marriage when the relationship will never ever be anything more than a butt bangin’ friendship, lose some dues.

      1. You have this decision. You have AFP v Banta allowing rich patriots to not be harassed by BLM thugs. You have Cosby released from his abduction by male feminist running dogs. In Fulton, the SC protected our foster children from forced exposure to the butt bangin’ lifestyle. PennEast subjected one of the worst states in the country to what they subject citizens all the time, by taking its property for private profits.

        What was not done is to arrest the Dem operatives who used IRS audits to harass Republicans, and to delay the certification of conservative non-profit groups. They did so at the command of Ivy indoctrinated Commie lawyer scumbag, Obama.

        1. Artie, I forgot the best one, Brnovich, the anti-Dem cheater decision. Cheating is the only way the Dem Party can win, their being the agents of the Chinese Commie Party.

          At this rate, I may have to retract and to apologize for what I have said about the Supreme Court.

    2. It’s amazing how often your side loses, Rev

  3. Unregulated lawyering. Now that’s the Texas way for you.

    1. Sarcasm in defense of worthless rent seeking.

    2. Unregulated lawyering. Now that’s the Texas way for you.

      As noted in the opinion (and quoted above), that’s of course not how things will end up, just like it’s not the way things have ended up in other deep red states like NY and CA. If the bar association really want to be a regulatory body, they can drop all the activist nonsense and get back on mission. Or they can carry on with the claptrap, and the state or another organization can take over the regulatory function.

    3. I would say, given the amount of prosecutor shenanigans going on around the country for years, that there is effectively no regulation of lawyering anyway.

    1. Hmm, maybe not, given the remand of part of the Oklahoma case and the rules on spending that mooted part of the Oklahoma case.

      Which leaves us with two circuits saying, “Well, recent cases haven’t directly overturned integrated bars, but they sure point to restrictions on what they can do.”

  4. Laudable, though I imagine this will resurface.
    The Texas Bar can apply the remedy in word only with little cost. What’s that saying of Brett Weinstein’s? “The minute I think I’m a cynic I’m reminded how naïve I really am.”

  5. seems logical given Janus.

  6. Now apply that to union dues.

    1. My thoughts as well.

      1. They did unions first. See Janus.

    2. They did unions already. Hence why public unions have been bleeding members.

  7. No more target lists of charity donors in California and now no more compelling membership and dues in Texas. It’s been a tough week for leftists seeking bully and harass people. But at least they can still force Washington State florists into involuntary servitude, for now.

  8. Wonder how this applies to, say, the CCPOA or police unions when they lobby against drug decriminalization and similar.

    Lobbying for trade would appear to be “germane”, if disgusting.

  9. One of the most troubling trends in contemporary society is the imposition of orthodoxy on those with unorthodox views. This case represents a local and limited push-back against that trend. It’s a good, if small, step in the right direction.

  10. There is a Circuit split on this issue, with the Tenth Circuit on the other side:

    1. Actually, no, it isn’t, if you read in detail. Both decisions agreed on law, with the difference in the two outcomes coming down to specific facts.

      The Oklahoma Bar in its case agreed to various restrictions on how it spent money, which it, the plaintiff, and the Tenth Circuit agreed mooted the case with regard to those expenditures. A similar issue was returned to the district court for fact-finding.

      And the Fifth Circuit decision in its case specifically mentioned that one of the things the Texas Bar can do to make bar dues mandatory again is “cease engaging in non-germane activities”.

      The two decisions each map out a single legal regime under current Supreme Court precedents; a state bar can either be mandatory or engage in non-germane lobbying, but not both at the same time.

    2. However, there is a circuit split with the 9th (Crowe v. Oregon State Bar) over whether Hudson standards apply to integrated bars, which is mentioned in the 5th’s decision.

  11. I agree with this decision as it cuts both ways, i.e., I wouldn’t want the Bar to engages in right-leaning, nongermane activities.

    The law is leftish enough and we don’t need the Bar pushing in that direction.

    They should just stick to technical, educational, ethical, admin standards for lawyers.

    1. “The law is leftish enough”

      Not yet. The mainstream isn’t done creating American progress. Not nearly.

      1. THe REv is harking back to his antecedents

        I’m just trying to figure out which group it is.

        Is he banging his shoe on the table while telling us he will attend our funereal?

        Or is he just bragging about his upcoming Thousand Year Reich?

  12. California is next. A member is tainted by the State Bar’s politics whether or not they can get a $25 rebate for the asking. It’s the image (and the implied support BY THE INDIVIDUAL MEMBER) that makes the FORCED “free” association unconstitutional.

    1. Nope. The 5th circuit decision notes that California already uses a hybrid system with two Bar associations.

      A mandatory bar that engages in only regulatory activity and a completely separate and entirely voluntary Bar that does all the political activity.

      1. Well, the California Bar’s split is enough under the rule that an appellate court can’t overturn a direct Supreme Court precedent on the basis of the implications of a later Supreme Court ruling. Whether it’s enough to survive a challenge that actually gets to the Supreme Court is another matter.

        1. Since the political side of the spit is 100% voluntary, I don’t see why it wouldn’t survive a challenge before the supreme court. On what basis would you even challenge it?

  13. All that means is they will have to invent fake charges like they did for Rudy Giuliani, disbar anyone who objects, and proceed onwards. Working around the law is what leftists do.

  14. Am I missing something here (IANAL)?
    You don’t have to be a member of the American Chemical Society to be a “chemist” and testify in court as an expert in some area of chemistry. Likewise, one with a degree in toxicology doesn’t have to be a member of the American Society of Toxicology to provide expert witness testimony.
    Just asking…

    1. But you do have to be a member of the bar to represent a client in court, or even to give legal advice.

  15. Any chance the Michigan bar sees a similar suit?

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