The Volokh Conspiracy

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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.