Amicus Curiae Brief — Tony K. McDonald, et al., Petitioners v. Sylvia Borunda Firth, et al.

No. 21-800

In The

Supreme Court of the United States

____________________

TONY K. McDONALD, et al.,

v.

Petitioners,

SYLVIA BORUNDA FIRTH, et al.,

____________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION, CATO

INSTITUTE, ATLANTIC LEGAL FOUNDATION,

AND REASON FOUNDATION

IN SUPPORT OF PETITIONERS

____________________

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

Counsel for Amici Curiae (additional counsel inside cover)

ILYA SHAPIRO

TREVOR BURRUS

Cato Institute

1000 Mass. Ave., NW

Washington, DC 20001

Telephone: (202) 842-0200

ishapiro@cato.org

LAWRENCE S. EBNER

Atlantic Legal Foundation

1701 Pennsylvania Ave., NW

Ste. 200

Washington, DC 20006

Telephone: (202) 729-6337

lawrence.ebner@atlanticlegal.org

MANUEL S. KLAUSNER

Reason Foundation

Law Offices of Manuel S. Klausner

5538 Red Oak Drive

Los Angeles, CA 90068

Telephone: (213) 617-0414

MKlausner@klausnerlaw.us

i

QUESTION PRESENTED

Does the First Amendment prohibit a state from

compelling attorneys to join and fund a state bar

association that engages in extensive political and

ideological activities?

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF REASONS

TO GRANT THE PETITION ..................................... 3

REASONS TO GRANT THE PETITION................... 6

I. MANDATORY STATE BAR ASSOCIATIONS,

LIKE PUBLIC EMPLOYEE UNIONS,

ENGAGE IN PERVASIVE POLITICAL AND

IDEOLOGICAL ACTIVITIES .......................... 6

II. COMPULSORY BAR DUES REQUIRE

EXACTING SCRUTINY ................................. 14

CONCLUSION.......................................................... 17

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977) ............................... 1, 4, 5, 16

Agostini v. Felton,

521 U.S. 203 (1997) ........................................... 16

Boudreaux v. Louisiana State Bar Ass’n,

3 F.4th 748 (5th Cir. 2021) ................................ 16

Brosterhous v. State Bar of Cal.,

12 Cal. 4th 315 (1995) ......................................... 1

Calzone v. Summers,

942 F.3d 415 (8th Cir. 2019) ............................. 15

Crosetto v. State Bar of Wisconsin,

12 F.3d 1396 (7th Cir. 1993) .............................. 7

Crowe v. Oregon State Bar,

142 S. Ct. 79 (2021) ............................................. 1

Crowe v. Oregon State Bar,

989 F.3d 714 (9th Cir. 2021) ............................ 10

File v. Kastner,

469 F. Supp. 3d 883 (E.D. Wis. 2020),

appeal pending, docket no. 20-2387

(7th Cir. 2020).................................................... 16

Fleck v. Wetch,

139 S. Ct. 590 (2018) ........................................... 1

Fleck v. Wetch,

140 S. Ct. 1294 (2020) ......................................... 1

Gardner v. State Bar of Nevada,

284 F.3d 1040 (9th Cir. 2002) ....................... 7, 13

iv

Janus v. Am. Fed. of State, Cty., and Mun.

Emps., Council 31,

138 S. Ct. 2448 (2018) ................. 1, 3, 5–8, 14, 16

Jarchow v. State Bar of Wisconsin,

140 S. Ct. 1720 (2020) ................................... 1, 16

Keller v. State Bar of Cal.,

496 U.S. 1 (1990) ....................... 1, 4–6, 12, 13, 16

Kingstad v. State Bar of Wisconsin,

622 F.3d 708 (7th Cir. 2010) ............................. 13

Lathrop v. Donohue,

367 U.S. 820 (1961) ............................... 4, 7, 8, 16

Liberty Counsel v. Fla. Bar Bd. of

Governors, 12 So.3d 183 (Fla. 2009) ................. 13

Mentele v. Inslee,

916 F.3d 783 (9th Cir. 2019) ............................. 15

Minn. Voters Alliance v. Mansky,

138 S. Ct. 1876 (2018) ......................................... 8

Nat’l Ass’n for Gun Rights, Inc. v. Mangan,

933 F.3d 1102 (9th Cir. 2019) ........................... 15

Popejoy v. N.M. Bd. of Bar Comm’rs,

887 F. Supp. 1422 (D.N.M. 1995)...................... 13

Romero v. Colegio de Abogados de Puerto

Rico, 204 F.3d 291 (1st Cir. 2000)................... 7, 8

Taylor v. Buchanan,

4 F.4th 406 (6th Cir. 2021), pet. for writ

of cert. pending, docket no. 21-357 (filed

Sept. 1, 2021) ..................................................... 16

Va. State Bd. of Pharmacy v. Va. Citizens

Consumer Council, Inc.,

425 U.S. 748 (1976) ............................................. 9

v

Washington Post v. McManus,

944 F.3d 506 (4th Cir. 2019) ....................... 14, 15

Zuckerman v. Bevin,

565 S.W.3d 580 (Ky. 2018) ................................. 7

Statutes

Tex. Gov’t Code § 81.051(b) ...................................... 3

Tex. Gov’t Code § 81.054........................................... 3

Tex. Gov’t Code § 81.054(j) ....................................... 3

Rules of Court

Sup. Ct. R. 37.2(a) ..................................................... 1

Sup. Ct. R. 37.6 ......................................................... 1

Other Authorities

Arizona, Mission, Vision, and Core Values,

https://tinyurl.com/2p8n87km (visited

Dec. 22, 2021)..................................................... 12

Hawaii State Bar Association, Mission,

https://tinyurl.com/4xux8ub2 (visited

Dec. 22, 2021)..................................................... 12

Herring, Mark R., Va. Atty. Gen. Op., 2015

WL 9701653 (Oct. 2, 2015) ................................ 10

Higgs, Robert, Crisis and Leviathan:

Critical Episodes in the Growth of

American Government (1987).............................. 9

Idaho State Bar, Mission Statement,

https://tinyurl.com/2yjj8dp5

(visited Dec. 22, 2021) ....................................... 12

vi

Louisiana State Bar Association, The

Mission of the Louisiana State Bar

Association,

https://tinyurl.com/2uapdkey (visited

Dec. 22, 2021)..................................................... 12

Mississippi Bar, Mission,

https://tinyurl.com/4tn82a5a (visited

Dec. 22, 2021)..................................................... 12

Mittman, Bailie, First Amendment

Freedoms Diluted: The Impact of

Disclosure Requirements on Nonprofit

Charities, 96 Ind. L.J. Supp. 102 (2021) ........... 15

Petition for Writ of Certiorari, Schell v.

Darby, docket no. 21-779

(filed Nov. 22, 2021)....................................... 1, 11

State Bar of Michigan, Mission Statement,

https://tinyurl.com/2p8sm6yw (visited

Dec. 22, 2021)..................................................... 11

State Bar of North Dakota, Board of

Governors, https://tinyurl.com/2p97dz9s

(visited Dec. 22, 2021) ....................................... 11

State Bar of Texas, Mission Statement,

https://tinyurl.com/3uyrx97e (visited

Dec. 22, 2021)....................................................... 4

Transcript of Oral Argument, Keller v. State

Bar of Cal., Oyez,

https://www.oyez.org/cases/1989/88-1905

(visited Dec. 22, 2021) ......................................... 4

Wright, R. George, A Hard Look at Exacting

Scrutiny, 85 U.M.K.C. L. Rev. 207 (2016) ........ 14

1

INTEREST OF AMICI CURIAE

Pacific Legal Foundation (PLF) is a nonprofit

legal foundation that seeks to protect individual

liberty and economic opportunity in the courts. 1 PLF

has repeatedly litigated in defense of the right of

workers not to be compelled to make involuntary

payments to support political or expressive activities

with which they disagree, including representing the

plaintiff attorneys in Keller v. State Bar of Cal., 496

U.S. 1 (1990), and Brosterhous v. State Bar of Cal., 12

Cal. 4th 315 (1995). PLF also participated as amicus

curiae in cases involving state laws mandating forced

association and compelled speech in violation of the

First Amendment from Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977), through Janus v. Am. Fed. of

State, Cty., and Mun. Emps., Council 31, 138 S. Ct.

2448 (2018), and supported the petitions for writ of

certiorari in Schell v. Darby, docket no. 21-779

(pending); Crowe v. Oregon State Bar, 142 S. Ct. 79

(2021); Fleck v. Wetch, 139 S. Ct. 590 (2018) (petition

granted, decision vacated and remanded), 140 S. Ct.

1294 (2020) (second petition after remand denied);

and Jarchow v. State Bar of Wisconsin, 140 S. Ct. 1720

(2020).

The Cato Institute is a nonpartisan public policy

research foundation established in 1977 and

1 Pursuant to this Court’s Rule 37.2(a), all parties consent to the

filing of this brief. Counsel of record for all parties received notice

at least 10 days prior to the due date of the Amici Curiae’s

intention to file this brief. Pursuant to Rule 37.6, Amici Curiae

affirm that no counsel for any party authored this brief in whole

or in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amici Curiae, their members, or their counsel

made a monetary contribution to its preparation or submission.

2

dedicated to advancing the principles of individual

liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies was

established in 1989 to help restore the principles of

limited constitutional government that are the

foundation of liberty. Toward those ends, Cato

publishes books and studies, conducts conferences and

forums, and publishes the annual Cato Supreme Court

Review.

Established in 1977, the Atlantic Legal

Foundation is a national, nonprofit, public interest

law firm whose mission is to advance the rule of law

and civil justice by advocating for individual liberty,

free enterprise, protection of property rights, limited

and efficient government, sound science in judicial

and regulatory proceedings, and school choice. With

the benefit of guidance from the distinguished legal

scholars,

corporate

legal

officers,

private

practitioners, business executives, and scientists who

serve on its Board of Directors and Advisory Council,

the Foundation pursues its mission by participating

as amicus curiae in carefully selected appeals before

the Supreme Court of the United States, federal

courts of appeals, and state supreme courts.

Reason Foundation is a national, nonpartisan,

and nonprofit public policy think tank, founded in

1978. Reason’s mission is to advance a free society by

applying and promoting libertarian principles and

policies—including free markets, individual liberty,

and the rule of law. Reason supports dynamic marketbased public policies that allow and encourage

individuals and voluntary institutions to flourish.

Reason advances its mission by publishing Reason

magazine, as well as commentary on its websites, and

3

by issuing policy research reports. To further Reason’s

commitment to “Free Minds and Free Markets,”

Reason participates as amicus curiae in cases raising

significant constitutional or legal issues, including

Janus, 138 S. Ct. 2448.

Amici believe that Janus’s announcement and

application of First Amendment doctrine requires this

Court’s reconsideration of compelled subsidies in the

analogous mandatory bar context and urge the Court

to grant the petition for writ of certiorari.

INTRODUCTION AND

SUMMARY OF REASONS TO GRANT

THE PETITION

Petitioners are attorneys licensed to practice in

Texas. As required by state law, they are members

and pay annual dues and fees to the State Bar of

Texas as a condition of practicing law. Tex. Gov’t Code

§ 81.051(b) (membership requirement); id. § 81.054

(dues requirement); id. § 81.054(j) (legal services fee

applicable to some licensed attorneys); App. 4. State

law permits the State Bar of Texas to engage in

political and ideological speech through lobbying

efforts, support of affinity groups such as sections and

local bar associations, communicative forums, and

publications distributed to the entire membership.

App. 3–5, 9. The authorization permits speech related

to “the administration of justice,” App. 3, or that

furthers the “purposes, expressed or implied,” of the

State Bar Act. App. 6. Paraphrasing the statutory list

of authorized activities, the State Bar of Texas defines

its mission broadly as

to support the administration of the legal

system, assure all citizens equal access to

4

justice, foster high standards of ethical

conduct for lawyers, enable its members to

better serve their clients and the public,

educate the public about the rule of law, and

promote diversity in the administration of

justice and the practice of law. 2

This Court has to date assumed that that

integrated, mandatory bar associations efficiently,

effectively, and (for the most part) non-controversially

manage the core functions related to regulation of the

legal profession. See Lathrop v. Donohue, 367 U.S.

820, 843 (1961); Keller, 496 U.S. at 5, 13. This

assumption was reasonable in light of the fact that the

Keller petitioners conceded that Lathrop was

controlling on the constitutionality of the integrated

bar, eliminating any need for the Court to consider

that question in 1990. 3 However, the history of

mandatory bar associations since Keller demonstrates

that the assumption now is unwarranted and should

be reconsidered in light of Janus.

2

State

Bar

of

Texas,

Mission

Statement,

https://tinyurl.com/3uyrx97e (visited Dec. 22, 2021).

3 Counsel for petitioners, Anthony T. Caso, made this point in his

opening remarks of the Keller oral argument. Keller v. State Bar

of Cal., Oyez, https://www.oyez.org/cases/1989/88-1905 (last

visited Dec. 22, 2021) (“This case does not challenge the right of

California to regulate attorneys through a mandatory bar

association. Instead, it asks whether having done so, may it also

authorize the bar to, in the words of the [California Supreme

Court], comment generally upon matters pending before the

legislature.”). The Keller complaint was filed in 1982, just five

years after Abood, a case representing a jurisprudence far less

protective of individual First Amendment rights. The court below

acknowledged that neither Lathrop nor Keller resolved a freedom

of association claim. App. 19.

5

State bar associations—Texas’s being no

exception—perceive their role as general guardians of

the legal system and often extend their reach into

political and ideological activities while couching their

involvement under innocuous-sounding phrases. App.

3–4. Yet virtually all matters involving the legal

system, occupational governance and public policy are

inherently and “overwhelmingly” political “matters of

great public concern” because they involve the

allocation of public money and collateral policy

matters. See Janus, 138 S. Ct. at 2475–77, 2480.

Ideological activities extend even further to social and

cultural concerns. Given the sheer breadth of such

political and ideological activities, many attorneys

have abundant reasons to resent subsidizing

mandatory bar associations, just as public employees

may not want to subsidize public employee unions.

Overruling Abood, Janus held that laws requiring

non-union members to pay public-sector union fees

are subject at least to “exacting scrutiny.” 138 S. Ct.

at 2465. Keller relied on established clear parallels

between public sector unions and state bar

associations when it held that attorneys regulated

under state law are subject to “the same constitutional

rule” that applies to public employees. 496 U.S. at 13.

Therefore, subjecting mandatory bar associations to

“the same constitutional rule” as public sector unions

now means subjecting them to exacting scrutiny that

reveals unjustifiable violations of attorneys’ First

Amendment rights. This Court should grant the

petition and direct federal courts to review compelled

subsidies for bar association speech under exacting

scrutiny regardless of germaneness.

6

REASONS TO GRANT THE PETITION

I

MANDATORY STATE BAR

ASSOCIATIONS, LIKE PUBLIC EMPLOYEE

UNIONS, ENGAGE IN PERVASIVE POLITICAL

AND IDEOLOGICAL ACTIVITIES

This case asks the Court to harmonize First

Amendment doctrine across the parallel and

analogous contexts of public employee union dues and

mandatory state bar dues, a question of national

importance that can be settled only by this Court.

State bars’ mission statements and bar officials’

statements focus on their organizations’ roles as

disciplinarians

and

evangelists

for

legal

representation and justice. In truth, however, bars

across the country continually engage in a wide range

of political and ideological activities designed to

implement the officials’ view of a better society, just

as public employee unions engage in a wide array of

political activity to achieve workplace goals and their

view of a better society.

The Janus majority was silent as to that ruling’s

impact on mandatory bars, but the primary dissent

acknowledged that, like Keller, the decision weaves

together policies that underlie both agency fee and

state bar cases. Janus, 138 S. Ct. at 2498 (Kagan, J.,

dissenting). In both contexts, Janus provides a greater

understanding of the nature of the injury to

individuals forced to support expressive activities

against their will. See Keller, 496 U.S. at 12 (“There is

. . . a substantial analogy between the relationship of

the State Bar and its members, on the one hand, and

the relationship of employee unions and their

7

members, on the other.”); Gardner v. State Bar of

Nevada, 284 F.3d 1040, 1042 (9th Cir. 2002) (“[T]here

is some analogy between a bar that, under state law,

lawyers must join and a labor union with an agency

shop.”); Romero v. Colegio de Abogados de Puerto Rico,

204 F.3d 291, 298 (1st Cir. 2000) (“No reason has been

presented to give attorneys who are compelled to

belong to an integrated bar less protection than is

given employees who are compelled to pay union dues,

and Keller suggests the two groups are entitled to the

same protection.”); Crosetto v. State Bar of Wisconsin,

12 F.3d 1396, 1404 (7th Cir. 1993) (“[Keller]

represented the first definitive legal statement that

mandatory bar dues had the same restrictions on their

use as compulsory union dues.”).

Despite the clear analogy, and Keller’s instruction

that mandatory bar dues are analyzed under the

“same constitutional rule” as public employee union

agency fee cases, the lower courts are unwilling to

apply Janus’s exacting scrutiny. See App. 12 (district

court in this case held that Petitioners’ challenge to

mandatory bar dues is entirely foreclosed by Keller

and Lathrop). 4 The Fifth Circuit below acknowledged

that “[s]ince Lathrop and Keller were decided, [this]

Court’s First Amendment caselaw has changed

dramatically,” and that Janus, “in particular, cast[s]

doubt” on the cases. App. 16 n.14. Even so, the court

This Court’s previous unwillingness to grapple with the

implications of Janus on Keller is even leading some judges to

question whether the “same constitutional rule” holding remains

good law. See, e.g., Zuckerman v. Bevin, 565 S.W.3d 580, 611 n.53

(Ky. 2018) (Keller, J., dissenting, joined by Cunningham and

Wright, JJ.) (opining that the rule of law announced in Janus

was narrowly “specific to public sector employees”).

4

8

considered itself bound by Lathrop and Keller in light

of this Court’s silence on the matter. App. 16–17.

This Court should grant certiorari to hold

explicitly that Keller’s germaneness test as applied by

the Fifth Circuit fails the First Amendment doctrine

announced in Janus. Applying Janus’s articulation of

First Amendment doctrine to mandatory bar

associations naturally follows from the Court’s

precedent. First, Janus clarified that all advocacy

relating to the allocation of public resources is

inherently political, as well as speech on matters of

“value and concern to the public.” Janus, 138 S. Ct. at

2474–76 (listing examples including speech related to

collective bargaining, education, child welfare,

healthcare and minority rights, climate change, the

Confederacy, sexual orientation and gender identity,

evolution, and minority religions). This is consistent

with the Court’s general understanding of the vast

range of what constitutes “political” expression. See,

e.g., Minn. Voters Alliance v. Mansky, 138 S. Ct. 1876,

1888 (2018) (“political” can be expansively defined to

include anything “of or relating to government, a

government, or [] governmental affairs” or the

“structure of affairs of government, politics, or the

state.”) (citation omitted); id. at 1891 (“All Lives

Matter” slogan, National Rifle Association logo,

rainbow flag all can be construed as political

expression).

Beyond the world of expressive activity that can

be described as political, the compelled speech cases

also protect individuals from being forced to associate

with “ideological” expression, even though what is

“ideological” can be tricky to pin down. See Romero,

204 F.3d at 302 (finding no “bright line between

9

ideological and non-ideological” bar association

speech). But, in general, “ideology” encompasses “the

body of ideas reflecting the social needs and

aspirations of an individual, group, class, or culture.”

Am. Heritage Dictionary of the English Language at

654 (Morris ed. 1981). Justice Stewart defined

“ideological expression” as follows: “Ideological

expression, be it oral, literary, pictorial, or theatrical,

is integrally related to the exposition of thought that

may shape our concepts of the whole universe of man.”

Va. State Bd. of Pharmacy v. Va. Citizens Consumer

Council, Inc., 425 U.S. 748, 779 (1976) (Stewart, J.,

concurring).

Scholars define “ideology” in varying ways, but all

stress the social aspect of ideological thought:

• “[A] distinct and broadly coherent structure of

values, beliefs, and attitudes with implications

for

social

policy.”

James

Reichley,

Conservatives in an Age of Change: The Nixon

and Ford Administrations 3 (1982), quoted in

Robert Higgs, Crisis and Leviathan: Critical

Episodes in the Growth of American

Government 36 (1987) (Higgs).

• “[A] collection of ideas that makes explicit that

nature of the good community . . . [T]he

framework by which a community defines and

applies values.” George C. Lodge, The New

American Ideology 7 (1975), cited in Higgs,

supra, at 36.

• “[A]n economizing device by which individuals

come to terms with their environment and are

provided with a ‘world view’ so that the

decision-making process is simplified. [It is]

10

. . . inextricably interwoven with moral and

ethical judgments about the fairness of the

world the individual perceives.” Douglas C.

North, Structure and Change in Economic

History 49 (1982), cited in Higgs, supra, 36–37.

At a minimum, therefore, “ideological” activities that

cannot be funded with compelled fees include those

seeking social change or “good” government. See

Crowe v. Oregon State Bar, 989 F.3d 714, 721 (9th Cir.

2021) (Oregon State Bar seeks “fairness” in the way

the world operates); Mark R. Herring, Va. Atty. Gen.

Op., 2015 WL 9701653 (Oct. 2, 2015) (statute

authorizes use of mandatory bar dues to fund a

“Diversity Conference” without any opt-out

procedure). These goals of social change, good

government, and fairness permeate mandatory bars’

mission statements and activities. 5

Like the State Bar of Texas, other mandatory

state bar associations assert a broad mandate to mold

the laws and legal system to fit their political and

ideological views. For example, the mission of the

State Bar of North Dakota is “to serve the lawyers and

the people of North Dakota, to improve professional

competence, promote the administration of justice,

uphold the honor of the profession of law, and

5 Lawyers have ample alternative professional voluntary outlets

to collectively express political or ideological views including

national organizations such as the American Bar Association,

DRI (civil defense attorneys), American Association for Justice

(trial lawyers), and voluntary bars such as the Bar Association of

the District of Columbia, California Young Lawyers Association,

as well as dozens of national and regional women’s and minority

bar associations.

11

encourage cordial relations among members of the

State Bar.” 6

The Oklahoma Bar Association lacks an official

mission statement, but its statutory authorization

and bylaws encompass issues related to “the

administration of justice,” “administrative bodies

exercising adjudicatory functions,” and “any proposal

for the improvement of the law, procedural or

substantive in principle.” Schell v. Darby, docket no.

21-779, at 5a (filed Nov. 22, 2021) (cleaned up).

Consequently, its communications cover a gamut of

topics including corporate speech, limitations on

campaign spending, oil and gas regulation, and so

forth. Id. at 6a–7a. The Bar’s legislative and public

policy activities reflect a similarly broad scope,

The Michigan State Bar’s mission is to “aid in

promoting improvements in the administration of

justice and advancements in jurisprudence, in

improving relations between the legal profession and

the public, and in promoting the interest of the legal

profession in this State.” 7 The Louisiana State Bar

Association exists to

assist and serve its members in the

practice of law, assure access to and aid

in the administration of justice, assist

the Supreme Court in the regulation of

the practice of law, uphold the honor of

the courts and the profession, promote

State Bar of North Dakota, Board of Governors,

https://tinyurl.com/2p97dz9s (visited Dec. 22, 2021).

6

7

State

Bar

of

Michigan,

Mission

Statement,

https://tinyurl.com/2p8sm6yw (visited Dec. 22, 2021).

12

the

professional

competence

of

attorneys, increase public understanding

of and respect for the law, and encourage

collegiality among its members. 8

The common theme and language across all

mandatory bars reflect dedication to general

improvement of courts, laws, and lawyers—frequently

denominated as the “administration of justice.” Yet, in

Keller, this Court held that a state bar’s statutory

mandate phrased in expansive platitudes such as

“administration of justice” permits too broad an

infringement on individual bar members’ First

Amendment rights because it allows the bar to speak

on such wide-ranging and controversial issues as

polygraph tests for state and local agency employees,

possession of armor-piercing handgun ammunition

and other gun control measures, a federal guestworker program, a victim’s bill of rights, abortion,

public school prayer, and busing. Keller, 496 U.S. at

14–15. Regardless of whether these activities were

legitimately

described

as

pursuing

the

8 Louisiana State Bar Association, The Mission of the Louisiana

State Bar Association, https://tinyurl.com/2uapdkey (visited Dec.

22, 2021). See also State Bar of Arizona, Mission, Vision, and

Core Values, https://tinyurl.com/2p8n87km (visited Dec. 22,

2021);

Hawaii

State

Bar

Association,

Mission,

https://tinyurl.com/4xux8ub2 (visited Dec. 22, 2021) (“The

Mission of the Hawaii State Bar Association is to unite and

inspire Hawaii's lawyers to promote justice, serve the public and

improve the legal profession.”); Idaho State Bar, Mission

Statement, https://tinyurl.com/2yjj8dp5 (visited Dec. 22, 2021)

(mission is “to aid in the advancement of the administration of

justice”);

The

Mississippi

Bar,

Mission,

https://tinyurl.com/4tn82a5a (visited Dec. 22, 2021). Almost all

these state bar associations are the subject of First Amendment

challenges by individual bar members.

13

“administration of justice,” the state’s compulsory

funding of these programs violated objectors’ First

Amendment rights. Id. at 15–16.

Although Keller should have acted as a brake on

political and ideological mandatory bar activities,

many mandatory state bars, including the State Bar

of Texas, continue to justify a wide range of activities

focused on a general desire for improving the

“administration of justice.” App. 3–4. Lower courts

continue to grant mandatory bars extensive power to

demand money from unwilling contributors to fund

these activities. See also Kingstad v. State Bar of

Wisconsin, 622 F.3d 708, 721 (7th Cir. 2010) (rejecting

the First Amendment claim of an attorney forced to

make unwilling subsidies to the mandatory bar’s

public relations campaign); Gardner, 284 F.3d at 1043

(holding that attorneys can be forced to support

mandatory bar’s public relations campaign to improve

public perceptions of lawyers); Liberty Counsel v. Fla.

Bar Bd. of Governors, 12 So.3d 183, 189 (Fla. 2009)

(approving bar’s authorization for a section to file an

amicus brief related to a law prohibiting homosexuals

from adopting children); Popejoy v. N.M. Bd. of Bar

Comm’rs, 887 F. Supp. 1422, 1430–31 (D.N.M. 1995)

(approving mandatory funding for the bar’s lobbying

for higher salaries for government lawyers and staff,

court-appointed representation in child abuse and

neglect cases, a task force to assist military personnel

and families, and the bar’s own litigation expenses).

This continued widespread infringement on attorneys’

individual First Amendment rights presents an issue

of national scope that this Court should resolve.

14

II

COMPULSORY BAR DUES

REQUIRE EXACTING SCRUTINY

Janus held that a state law compelling non-union

members to subsidize a public sector union’s speech

impinged on First Amendment rights to such an

extent that courts must apply “exacting scrutiny” to

determine whether the government can justify it. 138

S. Ct. at 2464–65. Janus defined exacting scrutiny in

the compelled subsidy context as requiring that the

state’s mandate must “serve a compelling state

interest that cannot be achieved through means

significantly less restrictive of associational

freedoms.” Id. This case presents an opportunity both

to require courts to apply exacting scrutiny to

mandatory subsidization of state bar associations and

also to better define the scope and application of

exacting scrutiny.

“Exacting scrutiny” lacks a precise definition and

appears to be a type of balancing test that sometimes,

but not always, falls short of strict scrutiny. As a

result, lower courts conflict as to its elements and

application. See R. George Wright, A Hard Look at

Exacting Scrutiny, 85 U.M.K.C. L. Rev. 207, 208, 211–

13 (2016) (noting the standard’s “almost limitless

flexibility” as courts choose among multiple factors to

emphasize in a balancing framework, sometimes

resembling strict scrutiny). For example, in

Washington Post v. McManus, 944 F.3d 506, 520 (4th

Cir. 2019), the court noted in a First Amendment

speech case that “exacting scrutiny” is “more

forgiving” than “strict scrutiny” in that “strict

scrutiny, in practice, is virtually impossible to satisfy,

while exacting scrutiny is merely difficult.” It defined

15

the test as requiring an “important” interest, id., and

“not necessarily the least restrictive means but . . . a

means narrowly tailored to achieve the desired

objective.” Id. at 521 (citations omitted). The court

later described the “touchstone for exacting scrutiny”

as “whether there is a fit that is not necessarily

perfect, but reasonable.” Id. at 523 (cleaned up).

The Ninth Circuit defines “exacting scrutiny” as

“somewhat less rigorous judicial review . . . which

requires the government to show that the challenged

[speech restrictions] are substantially related to a

sufficiently important government interest.” Nat’l

Ass’n for Gun Rights, Inc. v. Mangan, 933 F.3d 1102,

1112 (9th Cir. 2019). That court also has described

“exacting scrutiny” as a “balancing test” where “the

strength of the governmental interest must reflect the

seriousness of the actual burden on First Amendment

rights.” Mentele v. Inslee, 916 F.3d 783, 790 (9th Cir.

2019). The Eighth Circuit says that exacting scrutiny

requires a “substantial relationship to a sufficiently

important governmental interest” where “the

strength of the asserted governmental interest

reflects the seriousness of the actual burden” on First

Amendment rights. Calzone v. Summers, 942 F.3d

415, 423 (8th Cir. 2019) (en banc) (cleaned up). Much

as the Keller decision downplayed the infringement

caused by a politicized bar, the Second and Ninth

Circuits have enabled speech restrictions to survive

under “exacting scrutiny” by downplaying the burden

of speech restrictions and thus requiring a lesser state

interest to outweigh that burden. See Bailie Mittman,

First Amendment Freedoms Diluted: The Impact of

Disclosure Requirements on Nonprofit Charities, 96

Ind. L.J. Supp. 102, 120 (2021).

16

To date, no lower court has applied exacting

scrutiny to compulsory payment of bar dues, instead

using some version of the “germaneness” test

described in Keller. And as even the courts most

sympathetic to First Amendment claims have noted,

they are obligated to follow Keller and Lathrop despite

the evolution in the underpinning agency fee cases

culminating in Janus. See Agostini v. Felton, 521 U.S.

203, 237 (1997); see also Jarchow, 140 S. Ct. at 1720

& n.* (Thomas & Gorsuch, JJ., dissenting to denial of

certiorari) (urging the Court to address the “purely

legal question whether Keller should be overruled”

because the overruling of Abood “unavoidably” calls

into question the continued validity of Keller). 9

In Janus, this Court forcefully rejected earlier

cases that elevated collective speech over individual

expression. Understandably, the Court did not explore

every possible application of the announced doctrine

in other contexts. But the law now is in disarray.

Public employees enjoy greater First Amendment

protection for their right to speak than others, such as

attorneys, who remain compelled to subsidize the

9 See also Taylor v. Buchanan, 4 F.4th 406, 408–09 (6th Cir. 2021)

(noting that “Lathrop and Keller are an insurmountable hurdle

if they remain good law” and “doom” an attorney challenger’s

First Amendment claims), pet. for writ of cert. pending docket no.

21-357 (filed Sept. 1, 2021); File v. Kastner, 469 F. Supp. 3d 883,

889–91 (E.D. Wis. 2020), appeal pending, docket no. 20-2387 (7th

Cir. 2020) (rejecting facial challenge to mandatory bar

membership and dues requirement because a “lower court may

not overrule a Supreme Court case even if later cases have deeply

shaken the earlier case’s foundation”) (cleaned up). Cf.

Boudreaux v. Louisiana State Bar Ass’n, 3 F.4th 748, 755 (5th

Cir. 2021) (Lathrop and Keller “remain controlling law” although

the court “recognize[s] their weakened foundations, which

counsels against expanding their application.”).

17

speech of others, even when they disagree. Only this

Court can ensure consistent First Amendment

jurisprudence, in which “exacting scrutiny” warrants

a searching inquiry akin to strict scrutiny, across all

compelled dues contexts.

CONCLUSION

The petition should be granted.

DATED: January, 2022.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

ILYA SHAPIRO

TREVOR BURRUS

Cato Institute

1000 Mass. Ave., NW

Washington, DC 20001

Telephone: (202) 842-0200

ishapiro@cato.org

LAWRENCE S. EBNER

Atlantic Legal Foundation

1701 Pennsylvania Ave., NW

Ste. 200

Washington, DC 20006

Telephone: (202) 729-6337

lawrence.ebner@atlanticlegal.org

MANUEL S. KLAUSNER

Reason Foundation

18

Law Offices of Manuel S. Klausner

5538 Red Oak Drive

Los Angeles, CA 90068

Telephone: (213) 617-0414

MKlausner@klausnerlaw.us

Counsel for Amici Curiae