Forcing Lawyers To Join Bar Associations Violates 1st Amendment

In courtrooms across America, a battle is being waged between state bar associations and attorneys who don’t believe the right to practice law should depend on their willingness to be associated with leftist political candidates and causes.

It’s a classic case of “join or starve,” with many states requiring lawyers to maintain membership in state bar associations, despite — or perhaps because of — the organizations’ increasingly liberal tilt.

In response, the Freedom Foundation has filed an amicus brief with the U.S. Supreme Court in Crowe v. Oregon State Bar, challenging this forced membership arrangement as a flat-out violation of freedom of association.

The argument is straightforward: Lawyers in Oregon are being forced to be members of an organization that spouts political views they reject. The Oregon bar allows dissenting members to apply for a refund of money spent on political speech but maintains the requirement that all active lawyers be members of the association.

The Ninth Circuit Court of Appeals recognized there can be a violation of the freedom of expressive association when a group speaks and it’s assumed all members support the position taken. But ultimately, the Ninth Circuit upheld Oregon’s scheme, merely requiring the bar to add a weak Disclaimer to indicate that not all members of the bar share its opinion when the bar speaks on a given topic.

But the Freedom Foundation lawsuit argues this misses the point entirely. Forced association itself is the problem.

To understand the gravity of the issue, consider a parallel scenario: Imagine a journalist required to be a member of a media association that consistently promotes views contrary to his or her own, or a teacher forced to support an educational organization that advocates for policies they find deeply problematic.

Can you even contemplate the outrage that would ensue if gun owners had to be members of an organization that actively supported, for example, banning all privately owned guns? Even if the organization made it clear that its position on banning guns is not the position of all its members, the very fact that gun owners must be members would itself violate the First Amendment.

Janus Ruling a Step in Right Direction

The Supreme Court’s landmark decision in Janus v. AFSCME (2018) provides a step in the right direction for those facing compelled association. In that ruling, the justices recognized that compelling public-sector employees to pay union dues to subsidize speech they disagree with violates their First Amendment rights.

The same principle should apply to attorneys forced to fund bar associations that engage in political and ideological activity. And while mandatory bar states generally have a mechanism to refund dues and allow attorneys to opt out of paying for overtly political actions, the reality is that this does not go far enough.

The same was true of labor unions before the Janus decision, but the Supreme Court recognized that everything a public-sector union does is political since public unions bargain over taxpayer money. It is similarly difficult to parse a bar association’s legitimate functions from mere political and ideological posturing.

But even leaving direct political funding aside, compelled membership itself is a double standard that cannot stand.

The Freedom Foundation’s brief highlights a striking parallel: Just as attorneys in Oregon are forced to be a member of an organization that may take positions contrary to their beliefs, public school teachers in California, including Jewish educators, are forced into bargaining units represented by unions that promote anti-Semitic rhetoric and support political causes antithetical to their religious identities.

While Janus affirmed the First Amendment right of public employees to decline union membership and dues, many states still mandate public employees’ inclusion in bargaining units where specific unions serve as exclusive representatives — mirroring the dilemma faced by attorneys in mandatory bar states.

Left-Wing Bias of Bar Associations

The evidence of left-wing bias in bar associations is overwhelming. Many state bars file court briefs supporting progressive causes, sponsor programs pushing social justice agendas, publish magazines filled with left-leaning political content, and lobby for legislation straight from the progressive wish list.

Under current law, bar associations are supposed to separate their regulatory functions from their political activities. It’s a nice-sounding theory but, much like with labor unions, it can be very difficult to define and separate political speech from non-political.

The line has become so blurred that meaningful separation is practically impossible. It’s like asking the fox to guard itself while raiding the henhouse.

Currently, 31 states have mandatory, or “integrated,” bar associations, forcing lawyers into a system that conflates professional oversight with political advocacy.

True freedom of association would strengthen the legal profession, not weaken it. Voluntary bar associations would be incentivized to provide genuine value to attorneys rather than taking their membership for granted.

The Freedom Foundation’s brief points to successful voluntary models in states such as New York and Virginia that effectively serve the legal profession without infringing on constitutional rights.

This isn’t just about attorneys. It’s about a core American freedom — the right to choose which organizations you join and which causes you support, both through membership as well as with your hard-earned dollars.

No professional should face a coercive choice between their livelihood and compelled association with organizations or causes they find objectionable.

As the Supreme Court considers taking up Crowe, the justices face a moment of truth. Will they continue to allow this First Amendment carve-out or will they finally recognize that even attorneys deserve better than to have their livelihoods depend on their willingness to be associated with positions, ideas, and causes with which they disagree?

This fight is about more than just attorneys or bar associations. It’s about preserving the fundamental right of all Americans to choose which organizations and causes they support. 

Freedom of speech means nothing if professionals can be compelled to line up behind an organization’s political agendas as the price of practicing their profession.

Aaron Withe is the chief executive officer of the Freedom Foundation.