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Mandatory bar violated lawyer's association rights, but remedy 'need not be drastic,' 9th Circuit says

By Debra Cassens Weiss

August 29, 2024, 11:27 am CDT

A federal appeals court ruled this week that a lawyer’s mandatory membership in the Oregon State Bar violated his freedom-of-association rights because its magazine published statements that criticized former President Donald Trump and implied that the membership agreed.

The 9th U.S. Circuit Court of Appeals at San Francisco ruled for the plaintiffs claiming that the First Amendment violation in an Aug. 28 opinion. The opinion author, Judge Michelle T. Friedland, is an appointee of former President Barack Obama, as are two other judges on the panel.

The statements, one by Oregon bar officials and another by specialty bar presidents, had criticized white nationalism and racism. When lawyer Daniel Z. Crowe and other bar members objected to the magazine statements, the bar refunded costs attributable to publication of the Bulletin issue. Represented by the Goldwater Institute, Crowe sued.

The 9th Circuit dismissed a claim against the bar based on sovereign immunity under a new test established in a case last year. But the 9th Circuit allowed claims for declaratory and injunctive relief against bar officials for the freedom-of-association violation. The case goes back to a lower court to rule on relief.

“The remedy for this violation need not be drastic,” the appeals court said, citing examples. If the state bar engages in activities that are not germane to its function regulating the bar, it could include a disclaimer making clear that it does not speak on behalf of all its members, the appeals court said. And the bar could refer to its attorneys as “licensees” rather than “members,” to lessen the risk that the bar is speaking for members.

It was the second time that the 9th Circuit ruled in the case. The first was in February 2021.

In the 2021 opinion, the 9th Circuit dismissed a free speech claim because of the U.S. Supreme Court’s 1990 decision in Keller v. State Bar of California. Keller held that a mandatory state bar does not violate members’ free speech rights when it uses dues to subsidize activities germane to the regulation of the legal profession and that improve the quality of legal services. Nongermane activities can violate those rights unless there is a process to refund a portion on nonmembers’ dues used for those activities, the Supreme Court said.

The refund remedied the free speech violation, the 9th Circuit had ruled in its first opinion in 2021. But the appeals court said the plaintiffs could pursue their claim that mandatory membership in a group that that engages in political or ideological activities violates the right to freedom of association.

On remand, the district judge ruled that there was no freedom-of-association violation because the bar engaged in primarily germane activities. The 9th Circuit disagreed. A plaintiff forced to join an organization can win a freedom-of-association claim by showing “a reasonable observer would impute some meaning to membership in the organization and the plaintiff objects to that meaning,” the appeals court said.

Crowe had satisfied that standard, the 9th Circuit said.

The case stems from the publication of two statements in the Oregon bar’s Bulletin magazine in April 2018.

The first statement included the bar’s dark green logo and was signed by six Oregon State Bar officers, including the president and the chief executive officer. The second statement was signed by the presidents of seven Oregon special bars, all voluntary organizations.

The specialty bar statement said Trump had catered to the white nationalist movement and provided it with a false sense of legitimacy. The statement also said Trump had “espoused racist comments,” citing as an example Trump’s alleged comments that Haiti and African nations were “s- - -hole countries.”

The Oregon bar officers’ statement condemned violence and speech that incites it. It also praised specialty bars for their “courageous work.”

“As a unified bar, we are mindful of the breadth of perspectives encompassed in our membership,” the statement by the state bar officials said. “As such, our work will continue to focus specifically on those issues that are directly within our mission, including the promotion of access to justice, the rule of law and a healthy and functional judicial system that equitably serves everyone. The current climate of violence, extremism and exclusion gravely threatens all of the above.”

The 9th Circuit pointed to several factors that made it appear that the Oregon State Bar adopted the specialty bars’ statement criticizing Trump. Among them: The statements were published side by side, with a green border that was the same color as the state bar logo. The state bar statement “echoed the themes in the specialty bars’ statement, using strikingly similar language.” The state bar used the words “we” and “our” throughout. And the bar seemed to suggest that all members agreed with its statements when dealing with topics on which there was no “breadth of perspectives.”

“Crowe has shown that a reasonable observer would attribute meaning to his membership in OSB because of the Bulletin statements,” the appeals court said. The Oregon State Bar “endorsed the specialty bars’ statement criticizing then-President Trump and suggested that all members agreed with it.”

“Considering the totality of the circumstances here,” the appeals court said, the state bar “traded on its supposedly unified membership to bolster its own expression, fostering a misperception about the unanimity of its members’ views.”

Senior attorney Scott Day Freeman of the Goldwater Institute, a conservative and libertarian public policy think tank in Phoenix, praised the decision in a statement.

“We’re pleased that the 9th Circuit vindicated attorneys’ freedom-of-association rights under the First Amendment,” Freeman said. “Attorneys should never be forced to associate with speech they don’t support as a condition of practicing law.”

Reuters and Courthouse News Service covered the 9th Circuit’s decision, while the Volokh Conspiracy published highlights.