The Oregon State Bar has defended itself for the second time against a lawsuit by lawyers claiming that mandatory membership of the bar violates their First Amendment rights. The case centered on the publication of two statements in the Bar’s “Bulletin” in 2018, which condemned the resurgence of white nationalism and the normalization of violence and racism. In his ruling, U.S. District Judge Michael Simon in Portland granted the state bar’s motion for summary judgment and denied the lawsuit brought by current and former bar members.
The case was sent back to Simon two years ago after the Ninth Circuit ruled that his previous dismissal of the lawyers’ lawsuit failed to take into account whether their freedom of association claims under the First Amendment was impinged by mandatory membership itself, aside from their financial dues, of a bar association that engaged in “nongermane” political activities. The question of germaneness has become central to challenges to compulsory membership of state bars since the U.S. Supreme Court found in 1990 that the dues lawyers pay for bar membership, similar to union dues, can only be used for activities that are germane to the bar’s main purpose.
In the Oregon case, the Ninth Circuit was satisfied that the lawyers’ free speech rights weren’t violated because they were refunded $1.15 each for what would have been the use of their dues for the 2018 statements. This left the issue of whether their freedom of association rights was violated by compulsory membership of the state bar, whose 2018 statements they believed weren’t germane to the Oregon bar’s mission.
The 1990 Supreme Court Keller decision acknowledged a state bar’s mission of regulating the legal profession and improving the quality of legal services is a spectrum and not easy to delineate, according to Simon’s new ruling. Still, it includes advancing a fair, inclusive, and accessible justice system. The 2018 publication in which the state bar condemned white nationalism and the normalization of violence and racism fell within that mission, he found. Simon wrote that “the statement does not contain inherently political or partisan statements. Even if allusions to racism, white nationalism, and violence can be construed as inflammatory or ideological, that does not mean they are nongermane because they are still reasonably related to the advancement of the acceptable goals of the bar.”
The lawsuit was brought by a group of lawyers who claimed that they did not support the Oregon State Bar’s political statements and objected to being forced to join the bar as a condition of practicing law in the state. They argued that the Bar’s political views did not align with their own and that forcing them to join a group whose views they did not support violated their First Amendment rights. However, Judge Simon ruled that the lawyers’ freedom of association claims did not hold up, as the 2018 statements were not “nongermane” political activities and were within the bar’s mission. Therefore, the state bar was well within its rights to make the statements and require membership as a condition of practicing law in Oregon.
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Oregon State Bar prevails in challenge to compulsory membership