The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4080
JON E. K INGSTAD, S TEVE L EVINE AND
JAMES S. T HIEL,
Plaintiffs-Appellants,
v.
S TATE B AR OF W ISCONSIN,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:09-cv-00216-SLC—Stephen L. Crocker, Magistrate Judge.
A RGUED A PRIL 15, 2010—D ECIDED S EPTEMBER 9, 2010
Before B AUER, R OVNER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. To practice law in the State
of Wisconsin, lawyers must join the Wisconsin State
Bar. To join the State Bar, lawyers must pay State Bar
dues. For more than fifty years, this system has been
generating First Amendment litigation, and this case is
the latest installment. In 2007, the State Bar used a por-
tion of members’ dues to conduct a public image cam-
2 No. 09-4080
paign with the goal of improving the public’s perception
of Wisconsin lawyers. Petitioners Jon Kingstad, Steven
Levine, and James Thiel (collectively, the “Objectors”)
objected to the State Bar’s use of their mandatory dues
to fund the campaign as a violation of their rights
under the First Amendment. Their objection was first
heard by a state arbitrator, who ruled in favor of the
State Bar. The Objectors appealed to a state trial court, and
the State Bar removed their appeal to the federal courts.
The parties consented to having their case heard by
Magistrate Judge Stephen Crocker, who upheld the ar-
bitrator’s determination. The petitioners now appeal to
this court.
We hold that to withstand scrutiny under the First
Amendment, State Bar expenditures funded by manda-
tory dues must be germane to the legitimate purposes of
the State Bar. In doing so, we overrule one of the alter-
native holdings of Thiel v. State Bar of Wisconsin,
94 F.3d 399, 405 (7th Cir. 1996), in light of more
recent teachings. Because the public image campaign at
issue in this case is germane to those constitutionally
legitimate purposes, however, we affirm the judgment
in favor of the State Bar.
Factual and Procedural Background
I. Purposes, Activities and Funding of the State Bar of Wis-
consin
The State Bar of Wisconsin is a creation of the Wis-
consin Supreme Court, which also governs bar activities
No. 09-4080 3
under its rules. See Wis. S. Ct. R. 10.01. Membership in
the State Bar is a “condition precedent to the right to
practice law in Wisconsin.” Rule 10.01(1). The stated
purposes of the State Bar are to:
aid the courts in carrying on and improving the ad-
ministration of justice; to foster and maintain on
the part of those engaged in the practice of law
high ideals of integrity, learning, competence and
public service and high standards of conduct; to
safeguard the proper professional interests of the
members of the bar; to encourage the formation
and activities of local bar associations; to conduct a
program of continuing legal education; to assist or
support legal education programs at the preadmis-
sion level; to provide a forum for the discussion
of subjects pertaining to the practice of law, the
science of jurisprudence and law reform and the
relations of the bar to the public and to publish in-
formation relating thereto; to carry on a continuing
program of legal research in the technical fields of
substantive law, practice and procedure and make
reports and recommendations thereon within legally
permissible limits; to promote the innovation, de-
velopment and improvement of means to deliver
legal services to the people of Wisconsin; to the end
that the public responsibility of the legal profession
may be more effectively discharged.
Rule 10.02(2). To serve these broad purposes, the Wis-
consin Supreme Court rules permit the State Bar to
engage in and fund “any activity that is reasonably in-
4 No. 09-4080
tended” to further the State Bar’s purposes. Rule
10.03(5)(b)1. However, the Rules make clear that the
State Bar may not use the compulsory dues of any ob-
jecting member “for political or ideological activities
that are not reasonably intended for the purpose of reg-
ulating the legal profession or improving the quality
of legal services.” Id. Those activities must be funded
by voluntary dues or other sources of revenue.
A bar member may choose to withhold his or her
pro rata portion of dues that were budgeted for
activities that cannot be supported by compulsory dues.
See Rule 10.03(5)(b)2. To enable members to assert
their rights, the State Bar must publish each year a
written notice of the activities that can and cannot be
supported by compulsory dues, including each mem-
ber’s pro rata portion of each. If a member contends
that the State Bar has allocated dues incorrectly between
compulsory and voluntary activities, the member may
demand that the question be settled by an arbitrator.
See Rule 10.03(5)(b)3. In this case, the Objectors ob-
jected to the State Bar’s expenditure of mandatory dues
on a public image campaign for lawyers in fiscal year 2007.
II. The State Bar’s Public Image Campaign
The State Bar launched the public image campaign in
response to signs that some bar members saw a need
for such a program. In the State Bar’s 1998 Member-
ship Survey, when asked what they needed from the
State Bar, 15 of 145 members responding indicated that
they would like the State Bar to improve the image of the
No. 09-4080 5
legal profession in the community.1 One member
wrote that the State Bar needed “better involvement in
addressing the public’s perception of lawyers.” Another
commented that “the Bar needs to do more to improve
the image of lawyers and the legal profession in gen-
eral.” A third noted that members needed “an aggressive
public relations program.” In 2000, a poll of all State
Bar division, section, and committee chairs and local bar
presidents showed that 78% believed a State Bar-led
message development campaign was necessary. And in
2001, 89% of respondents to the State Bar’s Bench Bar
survey indicated that they believed the reputation of the
legal profession had declined in the eyes of the public.
In the midst of these studies, the Office of the Chief
Justice of the Wisconsin Supreme Court, the Director of
State Courts, the League of Women Voters of Wisconsin,
and the State Bar established the Public Trust Steering
Committee to address issues of public trust and con-
fidence in the Wisconsin justice system. The project had
three phases: first, to research and identify issues con-
cerning public trust and confidence; second, to gather
input from public focus groups; and third, to create
an action plan. The action plan was finalized in Octo-
ber 2000. The Committee reported, among other points,
that judges and attorneys needed to be encouraged to
be involved in the community. The Committee found
that increasing public confidence in the justice system
1
Only one other need—lowering costs and fees of State Bar
seminars, conventions, dues, and section memberships—
received more comments.
6 No. 09-4080
depended on people knowing and trusting the decision-
makers and understanding the legal process, and that
judges and attorneys who were active in the com-
munity were perceived to be more trustworthy. The
Committee recommended increased judicial and attor-
ney participation in and connection to their communities.
The State Bar formed a Public Image Committee to
address some of these concerns. Its purpose was to
“educate the public about the legal profession and
develop a common theme about how lawyers contribute
to the community.” President’s Message, 74 Wis. Law. 11
(Nov. 2001). The effort focused on the expertise, problem-
solving skills, and service to the community of Wis-
consin lawyers.
In 2002 the Public Image Committee unveiled a public
image campaign that carried the slogan “Wisconsin
Lawyers. Expert Advisers. Serving You.” Examples of
the materials developed and aired include:
• television spots featuring lawyers from the Green
Bay and Fox Valley area involved in a number of
community projects to improve the lives of senior
citizens and the Hmong population, elementary
and high school students involved in mock trial
efforts, and other community groups and activities;
• television spots featuring Dane County area law-
yers volunteering their time to the Dane County
Bar Association’s Family Law Assistance Center;
and
• television spots featuring La Crosse and Eau Claire
area lawyers using their legal skills to assist the
No. 09-4080 7
La Crosse County Bar’s Free Legal Clinic, a free
legal clinic for homeless veterans in Tomah, and
the La Crosse area bar’s support for “Jim’s Grocery
Bag,” eleven La Crosse School District food pan-
tries.
In fiscal year 2007—the year on which the fiscal year 2009
reduction was based and the focus of this lawsuit—the
State Bar spent $97,886 of mandatory dues on the public
image campaign. That amounted to $5.16 per member.
III. Proceedings Before the Arbitrator and the District Court
Pursuant to Wisconsin Supreme Court Rule 10.03(5)(b),
the Objectors’ claim was first heard by an arbitrator. The
Objectors argued that the State Bar’s expenditure of
mandatory dues on the public image campaign violated
their rights under the First Amendment because the
expenditures were not related to either the regulation
of lawyers or improving the quality of legal services,
and were ideological in nature. Cautioning that under
the State Bar bylaws he had “no authority to add, sub-
tract, set aside or delete from any Supreme Court Rule
or State Bar bylaw,” the arbitrator ruled in favor of the
State Bar. Arb. Dec. at 6, citing Wis. State Bar Bylaws,
Art. I, Sec. 5(e)(vi). Although the arbitrator expressed
“doubts about the ‘germaneness’ of the public image
campaign,” he concluded that having a good reputa-
tion was a proper professional interest for any profes-
sion and that the public image campaign appeared to fit
into the State Bar’s statutory purposes to “provide a
forum for the discussion of subjects pertaining to the
practice of law, . . . and the relations of the Bar to the
8 No. 09-4080
public and to publish information relating thereto.” See
Rule 10.02(2).
The arbitrator, however, ultimately was convinced
that “germaneness” was irrelevant unless the challenged
expenditure was political or ideological. See Arb. Dec. at
6-7, citing Rule 10.03(5)(b)1. The Objectors did not argue
that the public relations campaign was political, and the
arbitrator considered but rejected the Objectors’ argu-
ment that the public image campaign was ideological.
The arbitrator thus found that the State Bar had demon-
strated that the public image campaign was within the
language and intent of the applicable Wisconsin
Supreme Court Rules and that the Objectors could be
required to pay their share of its costs.
The Objectors sought judicial review of the arbitrator’s
decision in the state courts. The State Bar removed the
action to federal court. Removal was proper under 28
U.S.C. §§ 1331 and 1441(b) because the Objectors’
claim arose under the federal Constitution.2 The parties
2
The district court also suggested that after removal, the
Federal Arbitration Act would control review of the
arbitrator’s decision. The point is largely moot because the
standards under either the Wisconsin or federal arbitration
statutes are identical. See Wis. Stat. § 788.10(1)(d); 9 U.S.C.
§ 10(a)(4). However, the FAA was not invoked by the parties,
and our jurisdiction is based on the federal question raised
by the Objectors, not the FAA, which is not an independent
source of jurisdiction. E.g., Minor v. Prudential Securities, Inc., 94
F.3d 1103, 1104-05 (7th Cir. 1996). Because the state arbitrator
(continued...)
No. 09-4080 9
consented to have their case heard by Magistrate Judge
Crocker under 28 U.S.C. § 636(c). Judge Crocker affirmed
the arbitrator’s decision. He rejected the Objectors’ argu-
ment that language in this court’s decision in Thiel v.
State Bar of Wisconsin, 94 F.3d 399 (7th Cir. 1996), was
overruled by the Supreme Court in United States v.
United Foods, Inc., 533 U.S. 405 (2001). See Kingstad v.
State Bar of Wisconsin, 670 F. Supp. 2d 922, 926 (W.D. Wis.
2009). The Objectors then appealed to this court.
Analysis
I. Mandatory Associations under the First Amendment
The Objectors argue that even though the State Bar’s
public image campaign was not political or ideological,
it was not germane to the purposes of the State Bar
that allow the group to compel members to support its
group speech activities. Objectors contend that such
forced expenditures must also be germane to the pur-
poses of the State Bar in order to pass First Amendment
scrutiny. Our review of this constitutional question is
de novo. Zbaraz v. Madigan, 572 F.3d 370, 378 (7th Cir.
2009); Klementanovsky v. Gonzales, 501 F.3d 788, 791 (7th
Cir. 2007). On this threshold issue of law, we agree with
the Objectors.
2
(...continued)
arguably exceeded his powers, his decision was appealable,
and because the underlying claim arose under the federal
Constitution, the appeal was removable.
10 No. 09-4080
To understand why Objectors can be compelled to
subsidize some but not all of the State Bar’s activities,
one must understand why integrated or mandatory bars
are permissible under the First Amendment. We begin
with a brief overview. The First Amendment issue
arises because bar members are required by force of
law to join the group (as a condition of practicing their
profession) and to provide financial support for group
speech. These requirements implicate the First Amend-
ment freedom of association, which includes the free-
dom to choose not to associate, and the First Amendment
freedom of speech, which also includes the freedom to
remain silent or to avoid subsidizing group speech with
which a person disagrees. See generally Glickman v.
Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471-72 (1997);
Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, 515 U.S. 557, 573-74 (1995); Railway Employees’
Department v. Hanson, 351 U.S. 225, 236-38 (1956).
Despite this general rule against “forced speech,”
however, the Supreme Court has found that certain man-
datory associations—agency shops, agricultural mar-
keting collectives, and integrated or mandatory bars—
are permitted under the First Amendment because the
forced speech serves legitimate governmental pur-
poses for the benefit of all members. For example,
“agency shop” arrangements, in which all employees
must pay union dues whether they are union members
or not, are permitted because the government has an
interest in peaceful labor relations. In general, peaceful
labor relations are promoted if all employees share in
No. 09-4080 11
the expenses related to the collective bargaining from
which all employees benefit—both union members and
non-members. See, e.g., Abood v. Detroit Board of
Education, 431 U.S. 209, 221-23 (1977) (“agency shop”
arrangement was permitted to prevent “free riders” on
union’s collective bargaining efforts); International Associ-
ation of Machinists v. Street, 367 U.S. 740, 763-64 (1961)
(same); Hanson, 351 U.S. at 235-38 (purpose of pro-
moting peaceful labor relations was legitimate; with-
out a showing that agency shop arrangements were
used to force ideological conformity or to infringe on
employees’ freedom of expression or that dues were
imposed for reasons unrelated to collective bargaining,
agency shop arrangement did not violate First Amend-
ment). Similarly, statutorily-mandated agricultural mar-
keting collectives can pass First Amendment muster
because the government has an interest in establishing
and maintaining a comprehensive marketing plan for
agricultural commodities. Glickman, 521 U.S. at 469, 473.
“Mandatory” or “unified” bars, under which dues-
paying membership is required as a condition to prac-
tice law in a state, are also permitted under this theory.
See generally Lathrop v. Donohue, 367 U.S. 820 (1961)
(examining Wisconsin’s mandatory bar).3 In Lathrop, the
3
This arrangement has been described variously as an “inte-
grated,” “mandatory” or “unified” bar. See, e.g., Romero v.
Colegio de Abogados de Puerto Rico, 204 F.3d 291, 297 n.5 (1st
Cir. 2000) (“integrated” or “unified”); Morrow v. State Bar of
(continued...)
12 No. 09-4080
Court analogized a state bar to an agency shop and
found that Wisconsin had an interest in establishing an
integrated bar to:
elevat[e] the educational and ethical standards of the
Bar to the end of improving the quality of the legal
service available to the people of the State, without
reference to the political process. It cannot be denied
that this is a legitimate end of state policy. We think
that the Supreme Court of Wisconsin, in order to
further the State’s legitimate interests in raising
the quality of professional services, may constitu-
tionally require that the costs of improving the pro-
fession in this fashion should be shared by the sub-
jects and beneficiaries of the regulatory program,
the lawyers, even though the organization created
to attain the objective also engages in some legisla-
tive activity.
367 U.S. at 842-43 (internal footnote omitted). The Lathrop
Court reserved judgment on the question whether the
dissenters’ rights were being violated by using man-
datory bar dues to support political activities, finding
3
(...continued)
California, 188 F.3d 1174, 1175-76 (9th Cir. 1999) (“unified” and
“mandatory bar memberships”); Schneider v. Colegio de
Abogados de Puerto Rico, 187 F.3d. 30, 31 (1st Cir. 1999) (“manda-
tory bar”); Washington Legal Foundation v. Massachusetts Bar
Foundation, 993 F.2d 962, 979 (1st Cir. 1993) (“unified bar”).
“Integrated” and “unified” sound more positive, but “manda-
tory” is closest to reality.
No. 09-4080 13
that the record was not sufficiently developed to
address that claim. Id. at 847-48.
However, it is also now clear that the group speech
itself is not a sufficient purpose for a mandatory associa-
tion to withstand First Amendment scrutiny. In United
States v. United Foods, Inc., 533 U.S. 405 (2001), the
Supreme Court examined an agricultural collective
under which most of the collected assessments were
spent on generic advertising. Although the dissenting
group members were not restricted from communi-
cating their own messages, were not compelled to partici-
pate in any actual or symbolic speech, and were not
compelled to support any particular political or ideo-
logical viewpoint, the Court still held the program uncon-
stitutional. The Court found that the underlying pro-
gram was different from the program that had passed
muster in Glickman in one critical respect: “In Glickman
the mandated assessments for speech were ancillary to
a more comprehensive program restricting marketing
autonomy. Here, for all practical purposes, the ad-
vertising itself, far from being ancillary, is the principal
object of the regulatory scheme.” Id. at 411-12. A forced
subsidy of group speech, in other words, is permissible
when it is “a necessary incident of a larger expenditure
for an otherwise proper goal requiring the cooperative
activity.” Id. at 414. In United Foods, there was no
“larger expenditure.” The principal purpose of the
group was the compelled speech itself, so the Court
found that the mandatory subsidy of that speech vio-
lated the dissenters’ First Amendment rights.
14 No. 09-4080
II. Subsidy of “Non-Germane” Speech under the First Amend-
ment
In light of these principles, Wisconsin’s mandatory
State Bar is constitutional, and the Objectors may be
compelled to pay their share of direct and indirect ex-
penses that are reasonably incurred by the State Bar to
serve its dual constitutional purposes of regulating the
legal profession and improving the quality of legal ser-
vices. The Objectors’ argument is that the State Bar’s
public image campaign simply does not fit that bill. More
specifically, they argue that the constitutional issue
cannot be resolved based solely on the arbitrator’s
finding that the State Bar’s public image campaign was
non-political and non-ideological. We agree that the
issue of germaneness must also be part of the constitu-
tional analysis.
In Keller v. State Bar of California, 496 U.S. 1 (1990), the
petitioners were practicing lawyers subject to Cali-
fornia’s integrated bar. They claimed that the use of their
membership dues to finance ideological or political
activities that they opposed violated their rights under
the First Amendment. They objected to the bar’s lobbying
efforts, its filing of amicus briefs in pending cases, and
its expenditures for its annual conference and education
programs. The California Supreme Court upheld the
expenditures, but the Supreme Court of the United
States reversed. It stated that the constitutionally per-
missible purposes of the integrated bar were to regulate
the legal profession and to improve the quality of legal
services. A reviewing court had to determine whether
No. 09-4080 15
the challenged activities were necessarily and rea-
sonably incurred for those purposes, or whether they
were “activities of an ideological nature which [would]
fall outside of those areas of activity.” Keller, 496 U.S. at 13-
14. The Court explained:
Precisely where the line falls between those State
Bar activities in which the officials and members
of the Bar are acting essentially as professional ad-
visers to those ultimately charged with the regulation
of the legal profession, on the one hand, and those
activities having political or ideological coloration
which are not reasonably related to the advancement
of such goals, on the other, will not always be easy
to discern. But the extreme ends of the spectrum
are clear: Compulsory dues may not be expended
to endorse or advance a gun control or nuclear weap-
ons freeze initiative; at the other end of the spectrum
petitioners have no valid constitutional objection to
their compulsory dues being spent for activities con-
nected with disciplining members of the Bar or pro-
posing ethical codes for the profession.
Id. at 15-16.
We also learn from the Supreme Court’s exploration
of this question in other forced group speech contexts. In
Ellis v. Brotherhood of Railway, Airline, and Steamship
Clerks, 466 U.S. 435, 449-55 (1984), the Court considered
whether a union’s convention expenses, litigation ex-
penses that were not for bargaining or grievances,
union publication costs, social event expenses, employee
death benefits, and expenses related to general organ-
16 No. 09-4080
izing efforts were “germane” to the union’s purpose. The
Court considered each category of expense to see whether
it was “necessarily or reasonably incurred for the pur-
pose of performing the duties of an exclusive representa-
tive of the employees in dealing with the employer
on labor-management issues.” Id. at 448. The dissenters’
belief that the money was not being well spent on any
one of these endeavors was not enough. Id. at 456. Ulti-
mately, without discussing whether any of the chal-
lenged categories were political or ideological, the Court
found that of the challenged expenses, only the union’s
litigation expenses that were not for bargaining or griev-
ances and expenses related to its organizing efforts
were not germane to the union’s purposes that permitted
forced speech. Id. at 448-55. The other categories of ex-
penditures—social events, publications, and conven-
tions—did not infringe the objecting employees’ First
Amendment rights any more than their compulsory
contribution to the union, and were upheld by the
Court. Id. at 455-57.4
Also, in Lehnert v. Ferris Faculty Association, 500 U.S. 507
(1991), the Court reiterated that, to be charged to dis-
senting employees, the agency shop union expenses
must “(1) be ‘germane’ to collective bargaining activity;
4
At the time of the Court’s opinion the union was no longer
the exclusive bargaining agent, and the petitioners were no
longer involved in the death benefits system. Employee
death benefits were left as an open question. Ellis, 466 U.S.
at 454-55.
No. 09-4080 17
(2) be justified by the government’s vital policy interest
in labor and peace and avoiding ‘free riders’; and (3) not
significantly add to the burdening of free speech that is
inherent in the allowance of an agency or union shop.”
Lehnert, 500 U.S. at 519. The Court cautioned that the
test did not require “a direct relationship between
the expense at issue and some tangible benefit to the
dissenters’ bargaining unit.” Id. at 522. We need not list
the specific expenditures under review aside from one
that is particularly relevant here—a public image cam-
paign. The Court found that, under this standard, the
public image campaign was not germane to the union’s
collective bargaining functions. Lehnert, 500 U.S. at 528-29.5
From these teachings, we conclude that in a forced
group speech case, the First Amendment requires a
reviewing court to consider whether challenged expendi-
tures by dissenting members of a mandatory associa-
tion are reasonably related to the constitutionally
relevant purposes of that association. It is not sufficient
to examine only the political or ideological nature of
those expenditures without also considering whether the
expenses are related to the constitutionally legitimate
purposes of the association that permit forced group
speech in the first place. The applicable cases do not
describe the analysis as a test of “either-or,” as in “either”
5
The Lehnert Court also noted, without discussion or explana-
tion, that the campaign was political in nature. See id. The
Objectors have not argued that the public image campaign
conducted by the Wisconsin State Bar was similarly political.
18 No. 09-4080
the expenditures are non-political and non-ideological
“or” they are non-germane before they implicate the
First Amendment. Rather, the key is the overall “ger-
maneness” of the speech to the governmental interest
at issue. The political or ideological nature of the speech
factors into that ultimate analysis.
The parties have framed the issue before us as
whether the Objectors may be required to subsidize
speech that is not political or ideological but that is
also not germane to the constitutionally permissible
purposes of a mandatory bar. Since we last addressed this
issue in Thiel v. State Bar of Wisconsin, both the Supreme
Court and the First Circuit have provided additional
guidance. In United Foods, the Supreme Court reviewed
its earlier decisions in Abood and Keller and explained
the test not in terms of politics or ideology but in terms
of germaneness: “speech need not be characterized as
political before it receives First Amendment protection,”
and “lawyers [can] be required to pay moneys in
support of activities that [are] germane to the reason
justifying the compelled association in the first place . . . .
[O]bjecting members [are] not required to give speech
subsidies for matters not germane to the larger reg-
ulatory purpose which justifie[s] the required associa-
tion.” United Foods, 533 U.S. at 413-14, discussing Abood,
431 U.S. at 232 (union dues), and Keller, 496 U.S. at 14
(mandatory state bar).
The First Circuit considered this problem of germane-
ness for bar expenditures in Romero v. Colegio de Abogados
de Puerto Rico, 204 F.3d 291 (1st Cir. 2000). Puerto Rico’s
No. 09-4080 19
mandatory bar (the “Colegio”) required members to
purchase life insurance from its group life insurance
program. That expenditure was obviously not political
or ideological, but could unwilling members be required
to pay the bar for life insurance they did not want? Noting
that in some years the insurance premium constituted
as much as 72% of the bar dues, the First Circuit found
the mandatory payment to the Colegio’s group life insur-
ance plan was unconstitutional, holding specifically
that mandatory bar association dues could not be used to
fund non-germane activities even if those activities
were not ideological. See id. at 300 (“To say that germane-
ness is the test in ideological expenditure cases is not to
say that it is not also a relevant inquiry in cases in-
volving non-ideological expenditures.”). In reaching its
conclusion, the First Circuit considered the applicable
Supreme Court precedents and the policy supporting its
conclusion. As the court explained, the First Amendment
permits the government to force a union or bar member
to pay only for those expenses that are germane to the
purposes that justify requiring the member to belong to
the group in the first place:
[S]trong public interests justify the intrusion, and
the germaneness test guarantees that these public
interests are being served by any challenged activity.
Compelling financial support for activities wholly
unrelated to those public interests, however, changes
the balance and weakens the justification that sup-
ported the intrusion on First Amendment associa-
tional interests in the first place. Simply stated, that
an individual may be compelled to associate and
20 No. 09-4080
financially contribute for some purposes does not
mean she may be compelled to associate and finan-
cially contribute for all purposes. Without this ger-
maneness check, once a person is compelled to join
and support a bar association for legitimate reasons,
she could be forced to pay for any bar activity for
any reason or no reason, as long as it did not
involve political or ideological expression. Under
the Colegio’s theory, for example, it could mandate
that members join its life insurance program and
then spend 99% of member dues on life insurance.
Romero, 204 F.3d at 301 (internal citation omitted). We
agree with Romero and this reasoning.
To avoid an inquiry into germaneness, the State Bar
relies heavily on our opinion in an earlier chapter of the
Wisconsin bar saga, Thiel v. State Bar of Wisconsin, 94
F.3d 399 (7th Cir. 1996). In Thiel, plaintiffs challenged
the facial validity of Wisconsin Supreme Court Rule
10.03(5)(b) to the extent it authorized the use of man-
datory dues for non-germane, non-ideological expendi-
tures. After resolving an Eleventh Amendment issue,
the Thiel majority opinion reviewed the then-recent
Supreme Court cases on forced speech and concluded
that the court did not need to decide whether the State
Bar’s non-political and non-ideological speech was ger-
mane to its purposes of regulating the legal profession
or improving the quality of legal services: “we hold that
the First Amendment does not prohibit the Bar from
funding non-ideological, non-germane activities with
compelled dues.” 94 F.3d at 405. The Thiel majority then
No. 09-4080 21
addressed the challenged activities and concluded that
they were all in fact germane to the State Bar’s legitimate
purposes. Id. Either of these alternative holdings was
sufficient to decide Thiel itself.
Writing separately, Judge Ripple concurred with the
judgment but disagreed with the broader holding. He
cautioned that all of the activities complained of in
Thiel “fit quite comfortably within the category of non-
ideological, nonpolitical activities that are germane to
the regulation of the legal profession or the improve-
ment of the quality of legal services.” He concluded
that the court was “not confronted here with a situation
in which the bar can be said to be engaging in nonpoli-
tical, non-ideological activities that are also completely
divorced from those statutory purposes that justify man-
datory dues.” Id. at 406 (Ripple, J., concurring). Judge
Ripple noted further that “certainly, the same procedural
protections that ferret out activities of an ideological
and political nature will also identify nongermane ac-
tivities that are not ideological or political. But that does
not mean necessarily that such nongermane activities
need not be identified or that they can be supported by
mandatory dues.” Id.
Today’s case again presents the question that divided
the Thiel panel. The arbitrator and the district court under-
standably relied on the language of the majority’s
first alternative holding in reaching their decisions in
this case. With the benefit of the later guidance from
United Foods and the First Circuit’s helpful opinion in
Romero, however, we agree with Judge Ripple’s conclu-
22 No. 09-4080
sion. We agree that the State Bar may use the mandatory
dues of objecting members to fund only those activities
that are reasonably related to the State Bar’s dual pur-
poses of regulating the profession and improving the
quality of legal services, whether or not those same ex-
penditures are also non-ideological and non-political.
We thus overrule the first alternative holding in Thiel
and hold that the First Amendment prohibits the Wis-
consin State Bar from funding non-germane activities
with compelled dues.6 This holding effectively finds that
the second sentence of Wisconsin Supreme Court Rule
10.03(5)(b)1 is too narrow because it authorizes objec-
tions to the use of mandatory dues only for political
and ideological activities that are not reasonably related
to the constitutional purposes of regulating the legal
profession and improving the quality of legal services.
III. Germaneness of the Public Image Campaign
The State Bar argues that its public image campaign
expenses were germane to improving the quality of legal
services available to the people of Wisconsin. The Bar’s
6
Because this decision overrules the alternative holding of
Thiel, this opinion has been circulated among all judges of
this court in regular active service pursuant to Circuit Rule
40(e). No judge favored a rehearing en banc on the question of
overruling that portion of Thiel. Judge Sykes would rehear
the case on the issue of the actual germaneness of the State
Bar’s public image campaign, and her dissent from the denial
of rehearing en banc follows.
No. 09-4080 23
concern was that, if the public lacks trust in lawyers
and the legal system, more people may represent them-
selves rather than seeking out the assistance of a lawyer.
On the other hand, if people have more confidence in
lawyers and the legal system, they are more likely to
participate in that system and will be more likely to
refrain from extra-legal, and even violent, self-help
measures. By attempting to promote trust in lawyers
and the legal system, the public image campaign also
sought to solidify the fiduciary relationship between
lawyer and client and to improve lawyer-client com-
munications by encouraging disclosure, candor, and
compliance with competent advice.
The Objectors counter that there was no demon-
strated connection between improvement of the public’s
perception of lawyers and the legal profession and the
improvement of the quality of services that those
lawyers provide. According to the Objectors, the public
image campaign was designed to benefit lawyers, not
the public, by encouraging more people to engage the
services of lawyers, thus generating more fees. Although
the arbitrator had “doubts” as to the germaneness of the
public image campaign, he did not reach the issue
because he concluded he was not authorized to decide
the constitutional issue. Unlike the arbitrator, we are so
authorized. The record has been supplemented, and
the key facts about the content and nature of the State
Bar’s public image campaign are not disputed. We can
apply the constitutional test for reasonableness without
remand.
24 No. 09-4080
Under Keller, 496 U.S. at 14, and Ellis, 466 U.S. at 448, the
test here is whether the challenged expenditures were
“necessarily or reasonably incurred” for the constitu-
tionally legitimate purposes that authorize mandatory
dues. No one contends the public image campaign
costs were “necessarily” incurred to improve the quality
of legal services. The issue is whether the costs were
“reasonably” incurred for that purpose. The State Bar
believes there is a relationship between improving the
public’s trust in lawyers and improving the quality of
legal services that those lawyers are able to provide. By
fostering that trust, the State Bar hoped to encourage
better communication between lawyers and clients, and,
in doing so, to encourage development of the attorney-
client relationship. The hope was that trust and com-
munication would improve the quality of the relation-
ship and the service provided.
Our dissenting colleague finds that theory to be specu-
lative and unsupported by the record. We do not suggest
that the theory is beyond debate. It relies on a series of
assumptions: a “soft” image campaign will improve
the public image of lawyers, which will lead in turn
to better attorney-client relationships, which will lead
in turn to better quality legal services. We do not assert
that the record shows the public image campaign has
actually improved the quality of legal services, but we
do not see a need for a trial that would scrutinize either
the subjective motives of bar leaders or the actual effec-
tiveness of the public image campaign. The standard
of review is deferential, as when we review challenged
No. 09-4080 25
legislation to determine whether it is reasonably related
to a legitimate governmental purpose. Under that def-
erential standard, we find that the State Bar’s theory
is not unreasonable. A client who trusts his or her lawyer
seems more likely to disclose relevant information, par-
ticularly if that information is sensitive, and better, more
candid communication should enable lawyers to give
better, more comprehensive advice—which should im-
prove the quality of services. Also, it seems reasonable
to us to expect that a client who trusts his or her lawyer
is more likely to accept and act upon any advice the
lawyer is able to provide. When people follow competent
legal advice, the system itself is improved.
Do Wisconsin lawyers themselves benefit from the
State Bar’s public image campaign? We can assume that
they may. If more people seek out the services of
lawyers as a result of the public image campaign, those
lawyers will benefit from the increased business that
results. But that additional effect does not nullify the
legitimacy of the campaign. Again, the State Bar is not
required to prove that its expenditures were actually
successful in accomplishing the stated purpose, or that
they served only that purpose, or that the public image
campaign was a particularly wise use of the State
Bar’s funds. After all, “[p]etitioners may feel that their
money is not being well-spent, but that does not mean
that they have a First Amendment complaint.” Ellis, 466
U.S. at 456, quoted by Thiel, 94 F.3d at 405. The limited
issue before us is whether the public image campaign
was reasonably related to the constitutionally legitimate
26 No. 09-4080
purpose of improving the quality of legal services, and
we find that it was.
Although the Supreme Court in Lehnert found that a
union’s public image campaign was not germane, the
purposes supporting mandatory union dues (collective
bargaining and grievance resolution) and a mandatory
bar (regulating the profession and improving legal ser-
vices) are very different. See Lehnert, 500 U.S. at 528-29.
We find persuasive here the Ninth Circuit’s decision in
Gardner v. State Bar of Nevada, 284 F.3d 1040 (9th Cir.
2002), which distinguished Lehnert and found a public
image campaign for lawyers was “highly germane” to
the legitimate purposes of a mandatory bar. The court
provided a powerful defense of the legal profession
and the need for fostering—and earning—public trust:
Among the functions of the State Bar in this case
is the function identified by the district court—“to
advance understanding of the law, the system of
justice, and the role of lawyers, as opposed to
nonlawyers, to make the law work for everyone.” That
purpose is satisfied by the State Bar’s campaign to
dispel any notion that lawyers are cheats or are
merely dedicated to their own self-advancement or
profit. The law, rightly understood, is not a business
where the bottom line dictates the conduct that is
permissible. The law is a profession where a near
monopoly of access to the courts is granted to a
trained group of men and women on the basis that
they will follow the profession’s rules of conduct
and in so doing serve the cause of justice.
No. 09-4080 27
[Plaintiff] Gardner makes the point that lawyers
are supposed to serve their clients, not “everyone.” But
the underlying assumption that justifies the justice
system is that everyone is served by the adequate
representation of conflicting interests and perspec-
tives. It is perfectly true, not puffery, that lawyers
strive to make the law work for everyone by their
fair and zealous representations of their clients. It
is important for the public to understand that a
lawyer representing a defendant in a criminal case
is not a defender of crime, and that a lawyer advising
his or her client of a tax break is not a scoundrel but
an ally of a government that should collect as tax no
more than the law allows. It is equally important
for citizens to know that a prosecutor seeking to
imprison a man believed guilty of a crime is serving
justice, as is the state tax department’s attorneys
seeking to collect a tax. The lawyer who represents a
client who believes she has been unfairly denied
promotion is as much a partner in the system of
justice as the lawyer who acts for her employer
seeking to explain the apparent discrimination.
The public needs to know that often there are two,
or more, sides to a story or a situation. More’s Utopia
has no lawyers, but in our real world, lawyers are
not merely a necessity but a blessing. If the public
doesn’t understand that—and the State Bar had
reason to think many members of the public did
not—the justice system itself will wither. The work
of the State Bar to foster public understanding of the
adversary nature of law is vital to the bar’s function.
28 No. 09-4080
It is no infringement of a lawyer’s First Amend-
ment freedoms to be forced to contribute to the ad-
vancement of the public understanding of law.
284 F.3d at 1043.
The Ninth Circuit’s generous approach to germaneness
in Gardner is consistent with the portion of Thiel that
remains binding, where we found that all of the par-
ticular activities at issue were germane to the pur-
pose of the State Bar and could be funded with man-
datory dues. The disputed activities in Thiel included
publishing and distributing a Bill of Rights pamphlet for
pre-college students, conducting an “Economics of Prac-
tice” survey designed to help lawyers address business
decisions related to the practice of law, funding awards
given to reporters for writing on law-related topics,
sponsoring a group to assist alcoholic lawyers, local bar
grants, and sponsoring a mock trial competition. Thiel,
94 F.3d at 405. Although we have overruled the alter-
native holding in Thiel, its unanimous assessment of the
actual germaneness of these activities remains sound.
There is no meaningful difference between the public
image campaign at issue here and several of those ex-
penditures we approved in Thiel. We do not believe the
reasonableness test requires federal courts to engage in
closer parsing of the State Bar’s expenditures. 7 In light of
7
The dissent’s call for increased scrutiny of the State Bar’s
public image campaign would also cast doubt on the germane-
ness of the activities approved in Thiel. For reasons previously
(continued...)
No. 09-4080 29
Gardner and Thiel, we conclude that the State Bar’s public
image campaign was germane to the Bar’s constitutionally
legitimate purpose of improving the quality of legal
services available to the Wisconsin public.
The judgment of the district court affirming the ar-
bitrator’s decision to overrule plaintiffs’ objections
is A FFIRMED.
S YKES, Circuit Judge, dissenting from the denial of re-
hearing en banc. Three Wisconsin lawyers filed an objec-
tion to the State Bar’s use of their mandatory bar dues
to fund a public-relations campaign designed to im-
prove the image of lawyers and the legal profession.
Their First Amendment challenge raises important ques-
tions about the continued viability of Thiel v. State Bar of
Wisconsin, 94 F.3d 399 (7th Cir. 1996), the validity of
Wisconsin Supreme Court Rule (“SCR”) 10.03(5)(b)1, and
the proper approach to the “germaneness” inquiry that
determines whether a compulsory speech subsidy is
7
(...continued)
stated, we do not believe that this holding of Thiel needs to be
revisited, or that the federal courts should engage in such a
close parsing of the contents of the State Bar’s programs.
30 No. 09-4080
consistent with the constitution, at least in the context of
a mandatory bar. The State Bar defends Thiel and SCR
10.03(5)(b)1, and argues that its use of mandatory
bar dues for a public-image campaign is constitutional
under Keller v. State Bar of California, 496 U.S. 1 (1990).
My colleagues side with the challengers on the first
two inquiries, overruling the primary holding in Thiel
and effectively invalidating SCR 10.03(5)(b)1. Panel
Op. at 14-22. I agree with this part of the opinion. The
compelled-subsidy doctrine of Keller is not limited to
cases challenging the use of compulsory bar dues for
ideological or political activities, as Thiel held and the
supreme court rule implies. It applies more broadly, for
the reasons the panel has amply explained. Under Keller
and the Supreme Court’s related decisions in the union-
shop context, a mandatory bar association may use com-
pulsory bar dues only for activities that are germane to
the constitutionally relevant justifications for forced bar-
association membership: (1) the regulation of the legal
profession; and (2) the improvement of the quality of
legal services. Keller, 496 U.S. at 14; see also Romero v.
Colegio de Abogados de Puerto Rico, 204 F.3d 291, 297-303
(1st Cir. 2000). Activities not germane to these pur-
poses must be funded from voluntary dues. This is so re-
gardless of whether the challenged expenditure qualifies
as “political” or “ideological.”
More specifically, Keller held that “the guiding standard”
for assessing the constitutionality of a mandatory bar
association’s use of compulsory bar dues is “whether the
challenged expenditures are necessarily or reasonably
No. 09-4080 31
incurred for the purpose of regulating the legal profes-
sion or ‘improving the quality of the legal service avail-
able to the people of the State.’ ” 496 U.S. at 14 (quoting
Lathrop v. Donohue, 367 U.S. 820, 843 (1961)). The panel
comprehensively explains why Keller and more recent
developments in Supreme Court caselaw require us to
overrule the primary holding in Thiel. Panel Op. at 14-22.
Overruling Thiel, in turn, effectively invalidates critical
limiting language in SCR 10.03(5)(b)1. This rule was
adopted by the Wisconsin Supreme Court in response
to Keller and essentially reflects the more limited under-
standing of Keller articulated in Thiel. The rule provides,
in pertinent part, that “[t]he State Bar may not use com-
pulsory dues of any member who objects to that use
for political or ideological activities that are not reason-
ably intended for the purpose of regulating the legal pro-
fession or improving the quality of legal services.” W IS.
S UP. C T. R. 10.03(5)(b)1. To the extent that this language
limits the constitutionally required germaneness inquiry
to “political or ideological activities,” the rule is too nar-
row, as the panel has correctly held.1 Panel Op. at 22.
1
The plaintiffs here—Jon Kingstad, Steven Levine, and James
Thiel—are frequent mandatory-bar litigants and are currently
waging a two-front war against the alleged unconstitutional
use of their compulsory bar dues. This case is one front. The
other is a petition before the Wisconsin Supreme Court to amend
SCR 10.03(5)(b)1 to delete the language that limits the Keller
“germaneness” inquiry to State Bar activities that are “political
or ideological” in nature. See Pet. to Amend SCR 10.03(5)(b)1,
(continued...)
32 No. 09-4080
Thus far I have no quarrel with anything in the panel’s
analysis; to the contrary, I think it is thorough and sound.
I cannot agree, however, with the panel’s application
of these principles, which appears in Part III of the
analysis section of the opinion. Panel Op. at 22-29.
I recognize that this sort of disagreement would not
ordinarily justify rehearing this case en banc. But in this
case I think it does. After setting the constitutionally
required germaneness inquiry on a sound doctrinal
foundation, the panel applies the standard in a way that
drains it of any real meaning. The panel concludes that
the State Bar’s public-image campaign satisfies Keller’s
germaneness requirement; in my view, this conclusion
is procedurally questionable and substantively flawed.
As to procedure, as the panel has noted, this case came
into federal court from an arbitration proceeding com-
menced in accordance with the procedural scheme estab-
lished in SCR 10.03(5)(b) for challenging State Bar ex-
penditures of mandatory bar dues. Pursuant to the re-
quirements of the rule, the objecting lawyers sought
arbitration on the question of whether the State Bar’s
public-image campaign could properly be funded from
1
(...continued)
No. 09-08, filed on August 24, 2009, by Petitioners Jon
Kingstad, Steven Levine, James Thiel, and 40 other State Bar
members, available at http://www.wicourts.gov/supreme/docs/
0908petition.pdf. The state supreme court is holding this
rulemaking petition in abeyance pending the outcome of this
litigation.
No. 09-4080 33
their compulsory dues or must instead be funded
from voluntary dues. The arbitrator held that because
the public-image campaign was not “political or ideo-
logical,” the germaneness limitation on the use of com-
pulsory dues set forth in SCR 10.03(5)(b)1 was not im-
plicated. The arbitrator did not decide the Keller germane-
ness issue, properly understood—that is, he did not
decide whether the public-image campaign was ger-
mane to “improving the quality of legal services.” 2 The
arbitrator did, however, express some significant skepti-
cism on the matter. He said:
I believe that based on the evidence presented it is a
stretch, in fact, to regard [improving the quality of
legal services] as the campaign’s primary purpose.
There is simply too much in the record indicating
that the predominant goals have more to do with the
interests of lawyers than with the interests of their
clients or potential clients.
I will return to this point in a moment.
The objecting lawyers sought judicial review of the
arbitrator’s decision in state court, and the State Bar
removed the suit to federal court based on the lawyers’
First Amendment challenge to SCR 10.03(5)(b)1 and
this use of their mandatory bar dues. As I have
noted, the State Bar’s fallback position was that if the
political/ ideological limitation in the supreme court
rule was invalid, this court can and should decide the
2
No one suggests that the public-image campaign had any-
thing to do with “regulating the bar.”
34 No. 09-4080
broader germaneness question. And that’s what the
panel has done.
Here’s the (arguable) procedural problem: The ob-
jecting lawyers asked for a remand if they prevailed on
their claim that the supreme court rule is unconstitu-
tional. They said a remand was appropriate because
the arbitrator did not decide the broader germaneness
question and because the record in the district court on
that issue is nonexistent or at best incomplete. It’s not
entirely clear to me whether a remand is necessary or
appropriate under the circumstances. What is clear,
however, is that the panel’s germaneness holding rests
entirely on broad and generalized assertions about
public trust in the legal profession, not on anything in
the record.
And this is where I think the opinion is off-track as a
substantive matter. The panel concludes that the State
Bar’s public-image campaign is indeed germane to “im-
proving the quality of legal services.” The rationale for
this conclusion is essentially twofold. First, the panel
simply accepts the Bar’s assertion that the point of the
image campaign was to foster public trust in the
legal profession and defers to the Bar’s “theory” that
greater public trust will improve the quality of the legal
services Wisconsin lawyers provide to their clients. Panel
Op. at 24-25. Second, the panel adopts the rationale of
the Ninth Circuit’s decision in Gardner v. State Bar of
Nevada, 284 F.3d 1040 (9th Cir. 2002), an analogous case
involving a First Amendment challenge to the Nevada
State Bar’s use of compulsory dues to fund a similar
No. 09-4080 35
public-relations campaign. Panel Op. at 26-28. This is a
serious misapplication of Keller’s germaneness require-
ment. The panel credits the Bar’s germaneness “theory”
with little critical analysis and assigns Gardner far more
persuasive weight than it can reasonably bear.
The State Bar’s factual characterization of the image
campaign is called into question by the very slogan
under which the public-relations effort flies: “Wisconsin
Lawyers. Expert Advisors. Serving You.” The Bar’s pur-
pose here is unmistakable: It is to boost public opin-
ion of Wisconsin’s lawyers, not enhance public under-
standing of the legal profession or improve the quality
of the work lawyers do for their clients or the public. To
be “germane” to “improving the quality of legal ser-
vices,” an expenditure of compulsory bar dues should as
a factual matter have at least some connection to the
law, legal advising, legal education, legal ethics, or the
practice of law. The public-image campaign was aimed
at none of these things; it was all about marketing.
Indeed, the State Bar called it a “Branding Initiative” and
pitched it to Wisconsin’s lawyers as a public-relations
effort designed to “brand the profession” in order to
“improve the public’s perception of the profession.”
The ads themselves were totally content-free, at least
insofar as conveying any meaningful information about
the law or the role of lawyers in our legal system. They
depicted lawyers engaged in various forms of legal and
nonlegal volunteer work in their communities. This kind
of “soft” advertising may have a place in the package
of services a bar association might legitimately want to
36 No. 09-4080
provide for its members, but let’s not pretend it had
anything to do with educating the public about the
actual role of lawyers in our legal system. This was an
image campaign, after all.
But even accepting at face value the State Bar’s con-
tention that the ads were designed to promote public
understanding of and therefore trust in the legal profes-
sion, any claim that the image campaign was reasonably
related to improving the quality of legal services is at
best strained and at worst a little odd. To state the
obvious—and as the arbitrator recognized—an ad cam-
paign directed at boosting sagging public opinion of the
legal profession serves the interests of lawyers, not
their clients or the public. In what sense was this an
expenditure “necessarily or reasonably incurred for the
purpose of . . . improving the quality of . . . legal
service[s],” as required by Keller? 496 U.S. at 14. The
opinion contains a number of conclusory assertions on
this point—e.g., that greater public trust as a general
matter will yield better communication between indi-
vidual clients and their attorneys and ultimately lead
to more competent legal advice. Panel Op. at 24-25. This
strikes me as both implausible and entirely speculative;
it is highly attenuated as a matter of constitutional justi-
fication and in any event is completely unsupported
on this record.3
3
I am not suggesting that the germaneness inquiry requires
an examination of the “subjective motives of bar leaders” or
that the State Bar must establish that its “expenditures were
(continued...)
No. 09-4080 37
The Ninth Circuit’s opinion in Gardner, on which the
panel heavily relies, is long on rhetoric and short on
reasoning. It also misses the whole point of Keller. Gardner
rests its conclusion entirely on lofty truisms about the
importance of lawyers and a naked assertion that the
public “needs to know” about their role in making the
justice system work. From this the court concludes that
the Nevada State Bar’s public-relations campaign is
“highly germane to the purposes for which the State
Bar exists.” Gardner, 284 F.3d at 1043. This is not the
correct legal standard. The pertinent question is not
whether the challenged expenditure is reasonably re-
lated to any purpose for which a bar association exists;
that is useless as a decision principle if the point is to
protect free-speech rights in the context of forced bar-
3
(...continued)
actually successful in accomplishing its stated purpose.” Panel
Op. at 24-25. Keller’s germaneness requirement does not require
close scrutiny of a challenged expenditure of compulsory bar
dues, but it requires something more than mere rational-basis
review, which applies to all laws, starts from a presumption
of constitutionality, and “deems a law valid if any justification
for it may be imagined.” United States v. Skoien, No. 08-3770,
2010 WL 2735747, at *3 (7th Cir. July 13, 2010) (citing Vance v.
Bradley, 440 U.S. 93 (1979)). Keller’s germaneness require-
ment implements the protections of the First Amendment;
it therefore is not analogous to rational-basis review, as my
colleagues suggest. Panel Op. at 24-25 (“The [germaneness]
standard of review is deferential, as when we review chal-
lenged legislation to determine whether it is reasonably
related to a legitimate governmental purpose.”).
38 No. 09-4080
association membership. The pertinent question—the one
the Supreme Court said is the “guiding standard” for
First Amendment purposes—is whether the challenged
expenditure is reasonably related to one of the constitu-
tionally relevant purposes that justify mandatory bar
membership: regulation of the bar or improving the
quality of legal services. Keller, 496 U.S. at 14. The Ninth
Circuit did not address this question, and it is the only
one that matters. The court made no effort, that is, to
explain how the Nevada State Bar’s expenditure of com-
pulsory bar dues on a public-image campaign for law-
yers was “necessarily or reasonably incurred for the
purpose of . . . improving the quality of . . . legal
service[s].” Gardner is unpersuasive. We should not
follow it.
In the end, while the panel has done an exemplary job
of articulating the constitutional principles that gov-
ern this case, its application of those principles effec-
tively dilutes them.4 I have no objection to a “generous”
4
As the panel observes, Thiel’s alternative holding provides
some support for a loose and highly deferential understanding
of the germaneness review required by Keller. Panel Op. at 28-
29. Thiel approved the use of compulsory bar dues for a
variety of programs sponsored by the State Bar of Wiscon-
sin—including a mock-trial competition and awards given
to reporters for law-related writing—but offered no explana-
tion for this conclusion. 94 F.3d at 405 (“All of these [programs],
it seems, are geared towards improving the quality of legal
services in Wisconsin. Under Keller, they are germane and
(continued...)
No. 09-4080 39
interpretation of the germaneness requirement. Panel
Op. at 28. But the panel has gone well beyond “generous.”
If a public-image campaign designed to benefit law-
yers can be considered germane to improving the legal
services they provide to their clients, then the germane-
ness standard in this circuit is not merely generous, it
is meaningless. I would rehear this case en banc.
4
(...continued)
may be funded by compulsory dues, regardless of whether
they are ideologically oriented.”). My colleagues summarily
reaffirm this aspect of Thiel. Panel Op. at 28-29 (Thiel’s “unani-
mous assessment of the actual germaneness of [the challenged]
activities remains sound.”). This alternative holding in Thiel,
and the panel’s endorsement of it here, reflect an implicit
concern about excessive federal-court involvement in the
affairs of state bar associations. I share that concern. But the
state supreme court’s decision to make bar-association mem-
bership mandatory for all lawyers operates as a continuing
burden on their First Amendment rights, which imposes
constitutional responsibilities on the State Bar and makes a
federal-court role inevitable, or at least unavoidable. And in
this context, deference does not have a particularly strong
claim. The State Bar is not (as the Supreme Court observed in
Keller) “the typical government official or agency.” 496 U.S.
at 12.
9-9-10