Amicus Curiae Brief — Daniel Z. Crowe, et al., Petitioners v. State Bar of Oregon, et al.

No. 24-1025

───────────────────────────

In the

Supreme Court of the United States

──────────────────────────

DANIEL Z. CROWE, ET AL.,

Petitioners,

v.

STATE BAR OF OREGON, ET AL.,

Respondents.

──────────────────────────

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

──────────────────────────

BRIEF OF AMICI CURIAE

THE BUCKEYE INSTITUTE AND

THE PELICAN INSTITUTE

IN SUPPORT OF PETITIONERS

──────────────────────────

David C. Tryon

Counsel of Record

Alex M. Certo

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

John J. Park, Jr.

P.O. Box 3073

Gainesville, GA 30503

(703) 888-8329

Counsel for Amici Curiae

Sarah Harbison

Pelican Institute

Center for Justice

400 Poydras St.

Suite 900

New Orleans, LA 70130

i

QUESTIONS PRESENTED

1. Whether compelled membership in a bar

association that engages in nongermane activities is

necessarily unconstitutional, as the Fifth Circuit held

and the Ninth Circuit rejected.

2. Whether this Court should reconsider Keller in

light of Janus, and require the activities of a

mandatory bar association to satisfy at least exacting

scrutiny.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

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

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

SUMMARY OF THE ARGUMENT............................. 2

ARGUMENT ................................................................. 3

I. Introduction........................................................... 3

II. Janus applies to integrated bar organizations

like the Oregon State Bar .................................... 6

III. Thirty-five years of experience with Keller

shows that it is no more deserving of

continued respect than Abood ............................. 9

A. Speech regarding improving the quality of

legal services, like collective bargaining, is

inherently political ........................................ 10

B. The Hudson remedy is inadequate .............. 18

IV. Neither Keller nor Lathrop are essential to

the unified state bars’ performance of their

core functions ...................................................... 19

V. This case provides an effective vehicle to

liberate lawyers from forced association .......... 24

CONCLUSION ............................................................ 25

iii

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education,

431 U.S. 209 (1977) ................................................... 2

Boudreaux v. Louisiana State Bar Ass’n,

86 F.4th 620 (5th Cir. 2023) ..................... 2, 5, 15, 23

Chicago Teachers Union, Local No. 1 v. Hudson,

475 U.S. 292 (1986) ................................................... 8

Gardner v. State Bar of Nevada,

284 F.3d 1040 (9th Cir. 2002) ........................... 16, 17

In re Petition for a Rule Change to Create a

Voluntary State Bar of Nebraska, 841 N.W.2d

167 (Neb. 2019) ........................................................ 21

Janus v. AFSCME,

585 U.S. 878 (2018) ............ 2, 3, 6, 10, 11, 13, 18, 20

Jarchow v. State Bar of Wis.,

140 S. Ct. 1720 (2020) ............................................... 3

Keller v. State Bar of California,

496 U.S. 1 (1990).................................... 2, 7, 8, 11, 14

Kingstad v. State Bar of Wisconsin,

622 F.3d 708 (7th Cir. 2010) ................................... 17

Knox v. SEIU,

567 U.S. 293 (2012) ................................................... 8

Lathrop v. Donohue,

367 U.S. 820 (1961) ....................................... 9, 11, 19

Lehnert v. Ferris Faculty Ass’n,

500 U.S. 507 (1991) ................................................. 16

iv

Liberty Counsel v. Florida Bar Bd. of Governors,

12 So.3d 183 (Fla. 2009) .......................................... 22

McDonald v. Longley,

4 F.4th 229 (5th Cir. 2021) ....................... 4, 5, 14, 23

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ............................................... 3, 6

Romero v. Colegio de Abogados de Puerto Rico,

204 F.3d 291 (1st Cir. 2000) ................................... 17

Wooley v. Maynard,

430 U.S. 705 (1977) ................................................... 6

Other Authorities

Bradley A. Smith, The Limits of Compulsory

Professionalism: How the Unified Bar Harms

the Legal Profession, 22 Fla. St. U. L. Rev.

(1994) ..................... 2, 5, 12, 15, 16, 18, 19, 20, 21, 24

Brief of Amicus Curiae Family Law Section of

Nevada State Bar, Hedlund v. Hedlund, 125

Nev. 1043 (No. 48944) ............................................. 14

Brief of the Missouri Bar as Amicus Curiae in

Support of Appellees and Affirmance, Fleck v.

Wetch, 937 F.3d 1112 (8th Cir. 2019) (No. 161564) ......................................................................... 14

D.C. Bar, Summary of Amicus Curiae Brief by

the D.C. Affairs Section in Banner, et al. v.

U.S., Before the Supreme Court of the United

States ........................................................................ 13

v

Labor and Employment Section of the D.C. Bar,

Proposed Comments of the Labor and

Employment Law Section of the District of

Columbia Bar on Support for “D.C. Civil

Rights Tax Fairness Act of 2001” (Bill No. 14321)............................................................................ 12

Litigation Section of the D.C. Bar, Summary of

Public Statement of the Litigation Section of

the District of Columbia Bar Opposing the

Mayor’s Recommendation to Cut $1 Million in

Civil Legal Services and Loan Forgiveness

Funding .................................................................... 12

Lyle Moran, California Split: 1 Year After

Nation’s Largest Bar Became 2 Entities,

Observers See Positive Change, ABA Journal

(Feb. 4, 2019) ............................................................ 21

Pet. App., Fleck v. Wetch, 140 S. Ct. 1294 (2020)

(No. 19-670) .............................................................. 18

Pet., Crowe v. Oregon State Bar, No. 20-1678

(U.S. May 27, 2021) ................................................. 18

Ralph H. Brock, “An Aliquot Portion of Their

Dues:” A Survey of Unified Bar Compliance

with Hudson and Keller, 1 Tex. Tech J. Tex.

Admin. L. 23 (2000) ................................................. 20

Raychel Lean, Florida Bar’s Business Law

Section Urges High Court to Ease Summary

Judgment Standard, Law.com (Dec. 31, 2019) ..... 13

Rudyard Kipling, The Gods of the Copybook

Headings (1919) ....................................................... 23

The Florida Bar, Board Adopts Legislative

Positions (Jan. 10, 2019) ......................................... 13

vi

The Florida Bar, Family Law Section to File

Gay Adoption Case Amicus (Feb. 15, 2009)........... 22

1

INTEREST OF AMICI CURIAE1

The Buckeye Institute was founded in 1989 as an

independent research and educational institution—a

think tank—to formulate and promote free-market

policy in the states. The Buckeye Institute

accomplishes its mission by performing timely and

reliable research on key issues, compiling and

synthesizing data, formulating free-market policies,

and

marketing

those

policy

solutions

for

implementation in Ohio and replication across the

country. The Buckeye Institute works to restrain

governmental overreach at all levels of government.

The Buckeye Institute files lawsuits and submits

amicus briefs to fulfill its mission. The Buckeye

Institute is a nonpartisan, nonprofit, tax-exempt

organization, as defined by I.R.C. section 501(c)(3).

The Pelican Institute is a nonpartisan research

and educational organization—a think tank—and the

leading voice for free markets in Louisiana. The

Institute’s mission is to conduct research and analysis

that advances sound policies based on free enterprise,

individual liberty, and constitutionally limited

government.

Through its Center for Justice, the Pelican

Institute represented Randy Boudreaux, a Louisiana

lawyer who objected to the Louisiana State Bar

Association’s (LSBA) use of his dues to speak on issues

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amici curiae made any monetary contribution toward

the preparation or submission of this brief. Counsel timely

provided the notice required by Rule 37.2.

2

like oyster leases, gun control, and civics education—

political issues not germane to the practice of law. The

LSBA reformed its policies following a Fifth Circuit

ruling in Boudreaux v. La. State Bar Ass’n, 86 F.4th

620 (5th Cir. 2023), which ordered the LSBA to limit

its speech to matters germane to law practice.

SUMMARY OF THE ARGUMENT

In 1994, more than 30 years ago, Professor Bradley

Smith, observed, “[I]f ever there were advantages to

the unified bar, those advantages no longer exist.”

Bradley A. Smith, The Limits of Compulsory

Professionalism: How the Unified Bar Harms the

Legal Profession, 22 Fla. St. U. L. Rev. 35, 37 (1994).

He wrote shortly after this Court ruled that integrated

bar organizations could not use their members’ dues

for political or ideological purposes. Keller v. State Bar

of California, 496 U.S. 1 (1990). At least some bar

associations did not get the message or could not

distinguish between political and ideological speech,

and speech germane to lawyers and the legal

profession.

Keller has now been in place for 35 years, and First

Amendment jurisprudence has been clarified in that

time, cutting the jurisprudential and logical

foundations from under it. In particular, this Court

reversed Abood v. Detroit Board of Education, 431 U.S.

209 (1977)— on which the Keller Court relied—in

Janus v. AFSCME, 585 U.S. 878 (2018). Along the way

to Janus, the Court made it clear that the standard of

review is more rigorous than the test applied in Keller,

that deterring free ridership is not a compelling

interest that will justify the compelled subsidization

of speech, and that Abood was flawed in other ways.

3

The key precedent relied on in Keller has been

overruled. Moreover, history has further proven that

the distinction relied upon by Keller between activities

germane to improving the quality of legal services and

“activities of an ideological nature” is unworkable

because speech about improving legal services is

inherently political and touches on issues of public

concern about which people can and do disagree.

In short, “[n]ow that Abood is no longer good law,

there is effectively nothing left supporting [the

Court’s] decision in Keller.” Jarchow v. State Bar of

Wis., 140 S. Ct. 1720, 1720 (2020) (Thomas, J.,

dissenting from denial of certiorari). As the

Petitioners argue, Keller and Lathrop should be

reexamined and overruled.

ARGUMENT

I. Introduction

In pertinent part, the First Amendment to the U.S.

Constitution provides, “Congress shall make no

law … abridging the freedom of speech ….” The Court

has noted, “An individual’s freedom to speak … could

not be vigorously protected from interference by the

State unless a correlative freedom to engage in group

effort toward th[at] end[] were not also guaranteed.”

Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)

(citation omitted). A group that engages in expressive

association—like mandatory bar associations—

compels support of its message. An individual who has

been compelled to join but also objects to that message

should have the right to “eschew association for

expressive purposes.” Janus, 585 U.S. at 892.

Otherwise, that compelled membership will “infringe[]

4

on the freedom to associate.” McDonald v. Longley, 4

F.4th 229, 245 (5th Cir. 2021).

The Petitioners contend that the requirement that

they join the Oregon Bar, even though it engages in

nongermane speech, which Keller prohibits, violates

their rights of free speech and free association. As they

noted, the Ninth Circuit disagrees with the Fifth

Circuit’s two holdings that attorneys compelled to join

a bar association that engages in nongermane

activities are entitled to relief. In McDonald, the Fifth

Circuit concluded,

In sum, the Bar is engaged in nongermane activities, so compelling the

plaintiffs to join it violates the First

Amendment.

There

are

multiple

constitutional options: The Bar can cease

engaging in non-germane activities;

Texas can directly regulate the legal

profession and create a voluntary bar

association, like New York’s; or Texas can

adopt a hybrid system. But it cannot

continue mandating membership in the

Bar as currently structured or engaging

in its current activities.

Id. at 252.

Janus’s rejection of Abood applies in this case

because the Court has treated the integrated bar

similarly to a union for years. Much like unions, and

notwithstanding Keller’s injunction, unified bars are

engaged in lobbying and filing amicus briefs on

political and ideological issues as to which reasonable

people can and do disagree. Those unified bars justify

5

that activity as the pursuit of the anodyne, yet

expansive, notion of improving the quality of legal

services.

The Fifth Circuit has also explained the

constitutional difference between germane and

nongermane bar activities. “Compelled membership in

a bar that is engaged in only germane activities

survives [exacting] scrutiny.” Id. at 246. In contrast,

“[c]ompelled membership in a bar association that

engages in non-germane activities … fails exacting

scrutiny.” Id.; see also Boudreaux, 86 F.4th at 625 (“[I]f

mandatory bar associations are going to compel

individuals to associate and speak, they must stay in

their constitutionally prescribed lane.”).

The way out of the Keller wilderness in which

lawyers have wandered for 35 years lies in bifurcating

the bar, splitting it into a voluntary association that is

not bound by Keller and a mandatory regulatory body.

The alternative to vindicating the associational rights

of dissenting attorneys is to require those attorneys to

police bar activities for nongermane uses of their

compelled funding support and hope for a puny

refund.

Lawyers in some, but not all, states must join the

state bar association as a condition to their practice of

law. Other professions require a license to practice,

but nothing requires them to join an association. As

Professor Smith explained, “Doctors are not required

to join the medical society, nor dentists the dental

association.

Certified

public

accountants,

veterinarians, and architects are free to join, or refrain

from

joining,

their

respective

professional

organizations.” Smith, supra, at 36.

6

Put differently, it is only in some states that

lawyers are obligated to join the bar association and

have the bar association speak for them, subject to

blurry and ill-defined limits. The result is a First

Amendment outlier.

This Court, though, has declared, “Freedom of

association … plainly presupposes a freedom not to

associate.” Roberts, 468 U.S. at 623. Likewise, this

Court has “held time and again that freedom of speech

‘includes both the right to speak freely and the right

to refrain from speaking at all.’” Janus, 585 U.S. at

892 (quoting Wooley v. Maynard, 430 U.S. 705, 714

(1977)). The unified bar takes the freedom not to

associate and the freedom not to speak from lawyers

in states like Oregon, where such membership is

required.

II. Janus

applies

to

integrated

bar

organizations like the Oregon State Bar.

In The Limits of Compulsory Professionalism,

Professor Smith noted that viewed organizationally,

an integrated bar might be a private association, a

state agency, or a professional union. 2 This Court’s

jurisprudence and other considerations show that,

contrary to the contention of some unified bar

associations, an integrated bar operates more like a

professional union than the other alternatives.

In Keller, the Court unanimously rejected the

California State Bar’s contention that it was a state

2 The private association model does not work because the state

compels lawyers to join the bar organization to practice. The state

could simply require a license to practice without mandating the

tie-in of a mandatory association membership.

7

agency and was entitled to be treated as such. It noted,

“The State Bar of California is a good bit different from

most other entities that would be regarded in common

parlance as ‘government agencies.’” Keller, 496 U.S. at

11. The Court explained that its funding came from

dues payments, not from appropriations, and its

membership was limited. In short, “The State Bar of

California was created, not to participate in the

general government of the State, but to provide

specialized professional advice to those with the

ultimate responsibility of governing the legal

profession.” Id. at 13.

In contrast, the Court found, “[t]here 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 members,

on the other.” Id. at 12 (emphasis added). By requiring

lawyers to join the bar, the organization utilized state

enforcement mechanisms to preclude so-called free

ridership, just like other unions historically have

done. The Court saw nothing wrong with this: “It is

entirely appropriate that all of the lawyers who derive

benefit from the unique status of being among those

admitted to practice before the courts should be called

upon to pay a fair share of the cost of the professional

involvement in this effort.” Id. at 12.

The

consequences

that

followed

from

characterizing integrated bar organizations as

professional unions were familiar ones. First, the

Court rejected the California State Bar’s argument

“that it is not subject to the same constitutional rule

with respect to the use of compulsory dues as are labor

unions representing public and private employees.”

8

Id. at 13. Instead, consistent with and in reliance on

Abood, the bar organization was not permitted to

spend its members’ dues on “activities having political

or ideological coloration which are not reasonably

related to the advancement” of its legitimate goals. Id.

at 15. And, where the integrated bar spent dues on

nongermane political or ideological activities, the

remedy was to be determined using the Hudson

procedures. See Chicago Teachers Union, Local No. 1

v. Hudson, 475 U.S. 292, 310 (1986) (“[T]he

constitutional requirements for the Union’s collection

of agency fees include an adequate explanation of the

basis for the fee, a reasonably prompt opportunity to

challenge the amount of the fee before an impartial

decisionmaker, and an escrow for the amounts

reasonably in dispute while such challenges are

pending.”). The Keller Court explained, “We believe an

integrated bar could certainly meet its Abood

obligation by adopting the sort of procedures described

in Hudson.” 496 U.S. at 17.

In its decision, the Ninth Circuit held that the

Oregon Bar was a state agency, Pet. App. 14a–21a,

justifying its ruling by pointing to changes in its legal

standard for identifying state agencies. Even so, it

drew its test for evaluating the merits of Crowe’s

freedom of association claim from Knox v. SEIU, 567

U.S. 293, 310 (2012). Pet. App. 23a. Knox, which

mandates exacting scrutiny, involved the remedy

scheme for union spending on a “Political Fight-Back

Fund.” The Knox Court held that non-members should

have been notified of their rights and offered the

opportunity to opt out of the union’s political and

ideological campaign.

9

The continued application of Abood, Hudson, and

other union cases to integrated bar organizations

reinforces the “substantial analogy” that the Keller

Court saw between mandatory bar associations and

labor unions. It has further consequences given this

Court’s criticism of and ultimate reversal of Abood.

Those actions mandate the revising and reversal of

Lathrop v. Donohue, 367 U.S. 820 (1961), and Keller.

III. Thirty-five years of experience with Keller

shows that it is no more deserving of

continued respect than Abood.

In the 35 years since Keller, the integrated bars

were supposed to have refrained from spending dues

on political or ideological activities and were required

to provide rebates to lawyers when they went too far.

But this solution has proven to be unworkable in

practice. Speech by state bars concerning the

improvement of legal services is, like speech in publicsector collective bargaining, inherently political. Even

when an integrated bar does not take positions on

what may be characterized as hot-button

controversies, the positions advocated by integrated

bars regarding improving legal services touch on

matters of general public concern and involve

questions on which reasonable people may and do

disagree. In short, the problem of line drawing is

insoluble, and the Hudson remedy is not a

constitutionally adequate solution.

10

A. Speech regarding improving the quality of

legal services, like collective bargaining,

is inherently political.

In Janus, this Court explained that the union

speech paid for by agency fees addressed both

budgetary and other important issues, all of which had

political implications. Collective bargaining over the

level of employee compensation and benefits took

place against a backdrop of serious budgetary

problems. “The Governor, on the one side, and publicsector unions on the other, disagree[d] sharply over

what to do” about the problems with underfunded

pensions and healthcare benefits for retirees. Janus,

585 U.S. at 911. Union speech in collective bargaining

also addressed issues like “education, child welfare,

healthcare, and minority rights, to name a few.” Id.

Speech regarding education, for example, “touches on

fundamental questions of education policy”:

Should teacher pay be based on seniority,

the better to retain experienced

teachers? Or should schools adopt meritpay systems to encourage teachers to get

the best results out of students? Should

districts transfer more experienced

teachers to the lower performing schools

that may have the greatest need for their

skills, or should those teachers be

allowed to stay where they have put

down roots? Should teachers be given

tenure protection and, if so, under what

conditions? On what grounds and

pursuant to what procedures should

teachers be subject to discipline or

11

dismissal?

How

should

teacher

performance and student progress be

measured—by standardized tests or

other means?

Id. at 913. This Court concluded that the union speech

at issue in Janus was “overwhelmingly of substantial

public concern.” Id. at 914.

In the same way, bar lobbying and legislative

assistance, even on what Keller characterized as core,

putatively germane issues for the bar like “improving

the quality of the legal services available to the people

of the State,” Keller, 496 U.S. at 14 (quoting Lathrop,

367 U.S. at 843 (plurality opinion)), involve matters of

“substantial public concern,” Janus, 585 U.S. at 914,

and are inherently political.

Thus, not in spite of Keller, but rather because of

the error committed by Abood and perpetuated in

Keller, unified bar associations have engaged in

speech that is purportedly germane to the

improvement of legal services, but like public-sector

collective bargaining speech, is inherently political as

well. The solution accordingly is not to tinker with the

line-drawing exercise engaged in by the Keller Court,

but to recognize that the First Amendment requires

that any expenditures in support of such speech must

have been obtained voluntarily, with prior affirmative

consent. Janus, 585 U.S. at 929.

There are numerous examples that demonstrate

how integrated bar expenditures putatively aimed at

improving legal services are inherently political or

ideological. As Professor Smith observes, supporting

the provision of free legal representation to tenants in

12

eviction fights or other landlord-tenant legal disputes

would increase the availability of legal services. Even

so, “many bar members may staunchly oppose such a

position,” and an “ideological debate every bit as real

as the bar taking a position on a ‘substantive’ issue

such as rent control itself” could result. Smith, supra,

at 53.

Unified bar associations have engaged in lobbying

regarding taxation and the spending of public funds

that go to the very heart of the kinds of compulsory

political speech rejected in Janus. The Labor and

Employment Section of the District of Columbia Bar

filed a comment in support of the District of Columbia

Civil Rights Tax Fairness Act of 2001, which would

have eliminated income taxation of emotional distress

damages in discrimination lawsuits. See Labor and

Employment Section of the D.C. Bar, Proposed

Comments of the Labor and Employment Law Section

of the District of Columbia Bar on Support for “D.C.

Civil Rights Tax Fairness Act of 2001” (Bill No. 14321).3 The Litigation Section of the D.C. Bar publicly

opposed the Mayor’s recommendation to cut $1 million

in civil legal services and loan forgiveness funding, see

Litigation Section of the D.C. Bar, Summary of Public

Statement of the Litigation Section of the District of

Columbia Bar Opposing the Mayor’s Recommendation

to Cut $1 Million in Civil Legal Services and Loan

Forgiveness Funding,4 and the Florida Bar supported

3 https://tinyurl.com/55my7f5a (last visited Apr. 16, 2025).

4 https://tinyurl.com/rupp7yvm (last visited Apr. 16, 2025). When,

the Litigation Section issued its public statement opposing the

Mayor’s proposal to cut $1 million in funding for civil legal services

and loan forgiveness, the D.C. Bar stated that the Section’s action

13

legislation to provide student loan assistance for

government and legal aid lawyers who have served in

that capacity for three years, The Florida Bar, Board

Adopts Legislative Positions (Jan. 10, 2019).5 Florida

also supported adequate funding of and opposes cuts

to the funding of the Legal Services Corporation and

supports “adequate funding for civil legal assistance to

indigent persons through the Florida Civil Legal

Assistance Act.” See The Florida Bar, supra. “To

suggest that speech on such matters is not of great

public concern—or that it is not directed at the public

square—is to deny reality.” Janus, 585 U.S. 878 at 912

(internal citation omitted).

The D.C. Bar, the Florida Bar’s Business Law

Section, the Family Law Section of the Nevada Bar,

the Missouri Bar, and the Arizona Bar have all filed

amicus briefs on issues of public concern, including

nonresident taxation, LGBTQ rights, and other topics

as to which people can and do disagree. See D.C. Bar,

Summary of Amicus Curiae Brief by the D.C. Affairs

Section in Banner, et al. v. U.S., Before the Supreme

Court of the United States6; Raychel Lean, Florida

Bar’s Business Law Section Urges High Court to Ease

Summary Judgment Standard, Law.com (Dec. 31,

2019)7; Brief of Amicus Curiae Family Law Section of

Nevada State Bar, Hedlund v. Hedlund, 125 Nev. 1043

did not reflect the views “of the D.C. Bar or of its Board of

Governors.”

5 https://www.floridabar.org/member/legact/legact003.

6 https://tinyurl.com/47mu8xc3.

7 https://tinyurl.com/8pb6zh9d.

14

(No. 48944).8 Cf. Keller, 496 U.S. at 5 & n.2 (noting

that the Keller petitioners complained that “[f]iling

amicus curiae briefs in cases involving the

constitutionality of a victim’s bill of rights; the power

of a workers’ compensation board to discipline

attorneys; a requirement that attorney public officials

disclose names of clients; [and] the disqualification of

a law firm” were among the bar activities that

advanced “political and ideological causes”). More

particularly, the Missouri and Arizona Bars have filed

amicus briefs in support of unified bar associations

against attacks like those of Petitioners. See Brief of

the Missouri Bar as Amicus Curiae in Support of

Appellees and Affirmance, Fleck v. Wetch, 937 F.3d

1112 (8th Cir. 2019) (No. 16-1564). The State Bar of

Arizona filed the amicus brief in support of the State

Bar of Oregon in the case below. In each case, there

are lawyers who disagree with the positions taken by

the unified bars in their states.

The Texas and Louisiana Bars are no exception to

mandatory bar associations that engage in

nongermane activity. The Texas Bar engaged in

legislative lobbying that was “neither entirely

germane nor wholly non-germane,” with its support

for “changes to a state’s substantive law” being almost

completely nongermane. McDonald, 4 F.4th at 247–48.

Additionally, its funding of the Access to Justice

Commission was not germane insofar as some of that

funding went to “lobbying for changes to Texas

substantive law designed to benefit low-income

Texans.” Id. at 251. For its part, the mandatory

8 https://tinyurl.com/9jtcxyty.

15

Louisiana Bar engaged in nongermane spending

through several “Wellness Wednesday” and

technology and safety tweets, and its promotion of the

annual Red Mass, Halloween, and Christmas holiday

charity drives. Boudreaux, 86 F.4th at 632–34. None of

those Bar activities were “germane to the regulation

of the legal profession or the improvement in quality

of legal services.” Id. at 634.

In much the same way, the Oregon Bar engaged in

nongermane conduct when it published two

interrelated statements on “White Nationalism and

Normalization of Violence” in its Bar Bulletin. See,

e.g., Pet. App. 6a–9a. The Bar leadership’s statement

was paired with one on behalf of Specialty Bar groups,

including the Oregon Asian Pacific Bar Association,

the Oregon Women Lawyers, and other affiliated

groups. The Ninth Circuit noted, “[A] reasonable

observer would attribute meaning to [Crowe’s]

membership in [the Oregon Bar] because of the

Bulletin statements. [The Oregon Bar] endorsed the

Specialty Bars’ statement criticizing then-President

Trump and suggested that all members agreed with

it.” Pet. App. 29a–30a. “Because the Specialty Bars’

statement was not germane, [the Oregon Bar’s]

adoption of the Specialty Bars’ statement was not

germane either.” Pet. App. 36a.

Attempts to solve the constitutional infringement

by restricting the range of lobbying activities are

inadequate. Professor Smith has explained how, even

when the range of bar lobbying is limited, “the

problems inherent in the unified bar concept” remain.

Smith, supra, at 52. For example, the Michigan Bar

limited its legislative activity to five general areas,

16

including “increasing the availability of legal services

to society,” and providing “content-neutral advice to

legislators.” See id. at 53. But, “none of th[o]se terms

is self-defining.” Id. He notes that such a limitation

“shifts, but does not eliminate, the locus of questions

concerning the political activities of the bar and the

rights of dissenting members.” Id. at 52–53.

Lower courts have been equally inconsistent in

applying the line between what constitutes political

speech and what is properly chargeable or germane.

In Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991),

this Court held, among other things, that a union’s

public relations campaign aimed at burnishing the

standing of teachers “entailed speech of a political

nature in a public forum” and was not properly

chargeable. Id. at 528–29. The Ninth Circuit, later

followed by the Seventh Circuit, declined to follow

Lehnert in cases involving similar bar campaigns.

In Gardner v. State Bar of Nevada, 284 F.3d 1040,

1043 (9th Cir. 2002), the Ninth Circuit deemed a bar’s

public relations campaign to be “highly germane to the

purposes for which the State Bar exists.” It did so after

acknowledging, “Undoubtedly every effort to persuade

public opinion is political in the broad sense of the

word.” Id. at 1042–43. The court explained that the

campaign helped to “dispel the notion that lawyers are

cheats or are merely dedicated to their own selfadvancement or profit.” Id. at 1043. The campaign

served vague state bar interests “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.” Id.

17

The Seventh Circuit followed the Ninth Circuit in

disregarding one of Lehnert’s holdings. The court

concluded, “It is no infringement of a lawyer’s First

Amendment freedoms to be forced to contribute to the

advancement of the public understanding of the law.”

Kingstad v. State Bar of Wisconsin, 622 F.3d 708, 720

(7th Cir. 2010) (quoting Gardner, 284 F.3d at 1043);

see also id. at 721 (“[T]he State Bar’s public relations

campaign was germane to the Bar’s constitutionally

legitimate purpose of improving the quality of legal

services available to the Wisconsin public.”). In

contrast to the “exacting” scrutiny mandated by

Janus, the court’s review was “deferential.” The

Seventh Circuit found no need for a trial “that would

scrutinize either the subjective motives of bar leaders

or the actual effectiveness of the public image

campaign.” Id. at 718–19. The court’s test was not

necessity, but rather reasonableness.

The First Circuit found a unified bar association

requirement that all bar members purchase life

insurance from the association’s program not to be

germane to the bar association’s purposes. Romero v.

Colegio de Abogados de Puerto Rico, 204 F.3d 291 (1st

Cir. 2000). The court observed, “The costs of that

insurance are far from negligible; in some years the

life insurance premium has constituted 72% of the

dues.” Id. at 293.

Gardner, Kingstad, and Romero come from the

days when the courts looked at germaneness. Now, to

be consistent with this Court’s First Amendment

jurisprudence, the courts should employ exacting

scrutiny. Each case, though, illustrates how the

18

unified bars thought they should—or at least could—

spend their members’ dues.

B. The Hudson remedy is inadequate.

Remanding objecting lawyers to a Hudson-like

process of claiming a refund puts the burden on the

objectors and fails to examine the legal basis for the

bar’s claim. The results are also hardly worth the

effort.

When the Petitioners were before this Court

unsuccessfully in 2021, they noted that, after they

complained about the Oregon Bar’s advocacy, the Bar

gave them “a partial dues refund of $1.12, plus $0.03

of statutory interest, with no further explanation.”

Pet. at 8, Crowe v. Oregon State Bar, No. 20-1678 (U.S.

May 27, 2021); cf. Janus, 585 U.S. at 922 (“[T]he

Hudson notice in the present case and in others that

have come before us do not permit a nonmember to

make that determination,” i.e., whether to challenge

the Bar’s chargeability allocation.).

Professor Smith further explains that after the

Florida Supreme Court trimmed the Florida Bar’s

sails by limiting its lobbying activities to five subject

areas, the number of objectors was “relatively small.”

Smith, supra, at 51 & 54. Among the reasons for that

paucity of objections was “the rather paltry size of the

rebate,” which was $8.52 plus interest in 1993. Id. at

54, n.113; see also Pet. App. at 10a, Fleck v. Wetch, 140

S. Ct. 1294 (2020) (No. 19-670) (“OPTIONAL: Keller

deduction relating to non-chargeable activities.

Members wanting to take this deduction may deduct

$10.07 if paying $380; $8.99 if paying $350; and $7.90

19

if paying $325.”). Those Fleck numbers reflect a return

of some 2–3% of the annual dues.

Recall that in Lathrop in 1961, Mr. Lathrop

objected to a $15 annual assessment. See Lathrop, 367

U.S. at 822. Now, even after deductions are allowed in

some jurisdictions, much more money goes to the

unified bar in the form of member dues. Even if the

transition to a bifurcated bar led to a decrease in bar

membership, the resulting decrease might be offset by

reductions in administrative costs, ending services to

the lawyers who opted out, and saving the cost of

Keller-driven fights and rebates. Smith, supra, at 60.

IV. Neither Keller nor Lathrop are essential to

the unified state bars’ performance of their

core functions.

Professor Smith has observed, “The advantages of

coerced membership in a state bar have always been

more rhetorical than real.” Id. at 58. He goes on to

examine the claims that unified bars have more

resources and provide greater benefits to the public

and members, finding the arguments lacking.

Professor Smith notes that voluntary bar

associations have developed other sources of revenue

and have generally retained more than 70% of the

State’s lawyers. Id. at 59. He explains, “Where dues

are mandatory, lawyers may view the bar as a taxing

authority, to which the less paid the better.” Id. at 60.

In the same way, claims that the unified bar

provides “better consumer protection and regulatory

innovation, improved delivery of legal services,

including pro bono work, and better lawyer discipline”

are without merit. Id. at 61. Voluntary bar

20

associations first adopted client security funds and

continuing legal education programs. Id. Moreover,

“who could ever seriously suggest that pro bono legal

services for the poor and indigent are more readily

available in Michigan, with its mandatory bar, than in

Ohio or the other voluntary bar states surrounding

Michigan?” Id. Furthermore, the state can effectively

take responsibility for attorney discipline from the

otherwise autonomous trade association, and “there

are public policy reasons to prefer that it do so.” Id. at

62. The state is less likely to apply discipline for “anticompetitive or other illegitimate reasons” or

“unreasonably seek to protect members from

punishment or exposure.” Id. at 63. In short, the

unified bar has been a “disappointment” when it

comes to providing better public benefits. Id. at 61.

One solution is to apply Janus’s requirement that

no funds be extracted by bars in support of inherently

political speech without clear and affirmative consent.

Janus, 585 U.S. at 929. This can be (and has been)

accomplished by breaking the unified bar into two

parts: a voluntary bar that can act without regard to

Keller’s limitations and a mandatory association to

perform core regulatory functions. Several integrated

bar association states have made that split, while 37

jurisdictions, including 32 states, have not. See Ralph

H. Brock, “An Aliquot Portion of Their Dues:” A Survey

of Unified Bar Compliance with Hudson and Keller, 1

Tex. Tech J. Tex. Admin. L. 23, 24 (2000).

In 2013, the Supreme Court of Nebraska limited

the use of mandatory dues to the regulation of the

legal profession, identifying six functions of that

regulation, and called for “the remaining activities of

21

the Bar Association [to] be financed solely by revenues

other than mandatory assessments.” In re Petition for

a Rule Change to Create a Voluntary State Bar of

Nebraska, 841 N.W.2d 167, 179 (Neb. 2019). The

California Bar split into two entities in 2018 when the

bar’s sections and other trade association-like

activities were spun off into a voluntary entity. That

voluntary association is free to advocate for and

against state legislation without being limited by

Keller. See Lyle Moran, California Split: 1 Year After

Nation’s Largest Bar Became 2 Entities, Observers See

Positive Change, ABA Journal (Feb. 4, 2019).9

As Professor Smith noted, “to the extent that

efficient bar association administration and a strong

legislative program are beneficial to the private bar,

unification is a handicap, not a strength.” Smith,

supra, at 64. He explains, “In a voluntary bar

state, … the state can directly assume its proper

regulatory functions aimed at protecting the public

interest. Voluntary bar associations are then free to

tend to the broader issues of improving professional

standards, and to promoting voluntary pro bono,

educational, and other programs.” Id. at 63. Finally,

voluntary bar associations are free to declare their

views in ways that mandatory bar associations should

not be.

For its part, the Florida Bar Board of Governors

initially opposed some lobbying efforts proposed by the

Family Law Section “because it would cause deep

philosophical and emotional divisions among a

significant portion of the Bar’s membership.” See The

9 https://tinyurl.com/2k5zhxk2.

22

Florida Bar, Family Law Section to File Gay Adoption

Case Amicus (Feb. 15, 2009).10 In 2009, the Supreme

Court of Florida held that the Florida Bar’s “actions in

permitting the Family Law Section to file an amicus

brief do not violate the First Amendment rights of the

petitioners because membership in the Family Law

Section is voluntary and any such advocacy by a

section is not funded with compulsory dues.” Liberty

Counsel v. Florida Bar Bd. of Governors, 12 So.3d 183,

185 (Fla. 2009). In dissent, Justice Polston, joined by

Justice Canady, observed that the Bar did not follow

its policies in allowing the amicus brief to be filed.

Allowing optional sections of the bar to take

ideological positions that

the

Bar cannot

transparently end-runs Keller. Only truly voluntary

groups of lawyers, not subsets of unified bars, should

be permitted to stake out such positions.

Separate and apart from voluntary state bar

associations like those in California, New York, and

Ohio, there are other alternatives. They include the

American Bar Association, the Federalist Society, the

American Association of Justice, and the Defense

Lawyers Institute. Those organizations offer

continuing legal education programs for their

members and affiliates as well as varying degrees of

political activity. If the mandatory bar associations

were bifurcated, lawyers could join one of these or

other such associations instead of the voluntary state

bar associations.

The Ninth Circuit’s remedy fails for that reason. It

stated that “even if [the Oregon Bar] does engage in

10 https://tinyurl.com/23c84vep.

23

non-germane activities, in situations in which those

activities might be attributed to members, it could

include a disclaimer that it does not speak on behalf of

all those members.” Pet. App. 37a. That simply

licenses the mandatory Oregon Bar to engage in nongermane activities, requiring lawyers like Crowe to

police the nongermane activity.

The Fifth Circuit’s remedy is better but still has its

limits. In McDonald, the Fifth Circuit first rejected

the contention that opt-in, rather than opt out is

required. The court noted, “Though Janus and Keller

indicate that [opt-in] may be the case, Keller despite

‘its increasingly wobbly, moth-eaten foundations,’

remains binding.” McDonald, 4 F.4th at 253. The court

then concluded that Texas’s implementation of the

Hudson remedy was “inadequate.” Id. at 254. Finally,

the court entered a preliminary injunction in favor of

McDonald, “preventing the Bar from requiring

plaintiffs to join or pay dues pending completion of the

remedies phase.” Id. at 255; see also Boudreaux, 86 F.

4th at 638 (granting the same injunction in favor of

Boudreaux).

The Fifth Circuit’s disposition of McDonald and

Boudreaux is good as far as it goes. The problem is that

the mandatory bar associations will, inevitably, return

to nongermane activity, leaving it for objecting

members to police, and federal courts to consider. Cf.

Rudyard Kipling, The Gods of the Copybook Headings

(1919) ([T]he Dog returns to its Vomit and the Sow

returns to her mire/ And the burnt Fool’s bandaged

finger goes wabbling back to the Fire.”). Far better to

jettison Keller and Lathrop and relieve the members

and federal courts of those burdens.

24

Getting to a bifurcated bar requires reversing both

Keller and Lathrop. Reversing Keller would be just

Abood’s second shoe dropping; Keller relied on it and,

in application, suffers from the same defects. Lathrop

is the source of the mischief in that it authorizes the

state to compel lawyers to become members of the

unified bar. It thereby infringes lawyers’ First

Amendment right to refrain from associating.

V. This case provides an effective vehicle to

liberate lawyers from forced association.

The right to associate and not to associate is

fundamental. Organizations purporting to represent

lawyers—governed by more lawyers—should be more

protective of these rights than any other organization.

Yet hundreds of thousands of lawyers are forced to

associate with organizations that do not represent

their views—and pay for the privilege. That is wrong.

This case is a clean, timely vehicle to address this

issue. It has been seven years since Janus, wherein

the Court addressed forced association in the context

of public union fair share fees. Lawyers subject to

unified mandatory bars should be free to disassociate

from an organization taking their money and

purporting to represent all lawyers forced into that

organization.

Indeed, “the very nature of the unified bar is

inconsistent with the role of lawyers as the champions

of individual rights. Both lawyers, and the public at

large, would benefit from the abolition of the unified

bar concept in favor of voluntary bar associations.”

Smith, supra, at 37. And the First Amendment

requires no less.

25

CONCLUSION

For the reasons stated above, the Court should

grant the Petition and, on review, reverse the Ninth

Circuit’s decision.

Respectfully submitted,

David C. Tryon

Counsel of Record for Amici Curiae

Alex M. Certo

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

John J. Park, Jr.

P.O. Box 3073

Gainesville, GA 30503

(703) 888-8329

Sarah Harbison

Pelican Institute Center for Justice

400 Poydras St.

Suite 900

New Orleans, LA 70130

Counsel for Amici Curiae

April 24, 2025.