Ninth Circuit considers reviving First Amendment claims against Oregon State Bar

PORTLAND, Ore. (CN) — Attorneys who sued the Oregon State Bar in 2018 revisited the Ninth Circuit on Tuesday after an Oregon federal judge twice determined that the bar’s compulsory membership, coupled with its statements condemning racism and violence, does not violate their First Amendment rights.

In April 2018, the Oregon State Bar ran statements in its monthly bulletin condemning white nationalism and faulting former U.S. President Donald Trump for promoting racism and normalizing violence.

The first statement referenced the Unite the Right Rally in Charlottesville in 2017, where a torch-bearing white supremacists rallied and a man drove a car into a crowd of counter-protesters, killing one. The second statement mentioned the May 2017 train stabbings in Portland where a man in the midst of a racist rant attacked three passengers, killing two.

The first, attributed to the bar, condemned “the proliferation of speech that incites such violence.” Some members of the state bar took issue with the statements, prompting four attorneys and a group called Oregon Civil Liberties Attorneys to bring two lawsuits challenging the bar’s membership requirement for practicing law in Oregon.

In 2019, U.S. District Judge Michael Simon, an Obama appointee, dismissed both cases after finding the statements were “germane to improving the quality of legal services."

Simon also determined the bulletin was a “forum for the exchange of ideas pertaining to the practice of law" and that the bar’s policy of refunding membership dues misused for political purposes protected the constitutional rights of the members who had complained.

The Ninth Circuit revived the attorneys’ free-association claim in 2021 — but Simon dismissed the cases yet again after finding that the bar’s statements did not contain inherently political or partisan viewpoints.

"Even if allusions to racism, white nationalism and violence can be construed as inflammatory or ideological that does not mean they are nongermane, because they are still reasonably related to the advancement of the acceptable goals of the bar,” Simon wrote in his 2023 order.

On Tuesday, the appellate panel — all appointees of former President Barack Obama — considered separate arguments for why they should toss Simon’s dismissal.

“A mandatory bar association that engages in nongermane conduct cannot compel association,” said attorney Scott Day Freeman on behalf of attorneys Daniel Crowe and Lawrence Peterson and the nonprofit Oregon Civil Liberties Attorneys.

Refunding the attorneys’ membership fees and offering disclaimers cannot cure the bar’s constitutional injuries either, Freeman argued — especially since even with disclaimers, any message of the bar’s president is enhanced by virtue of compelled membership.

Meanwhile, attorney Michael Spencer — representing attorneys Diane Gruber and Mark Runnels — argued that the issue has less to do with the germaneness of the bar’s statements and more to do with the fact that Oregon law requires bar membership for attorneys to practice law.

"The case law certainly clears out that you not only have a right to associate but you have a right not to associate with entities that engage in expressive conduct,” Spencer said.

U.S. Circuit Judge Michelle T. Friedland asked Freeman and Spencer whether the state bar could begin recognizing its members as licensees instead.

On this issue too, the attorneys offered differing opinions.

Freeman argued that changing the semantics of his clients’ association doesn’t cure their compelled membership with the state bar. Spencer, on the other hand, said such a compromise would need to come from Oregon lawmakers.

“The Oregon Legislature needs to change [the law] and create an entity that licenses lawyers and [make] it very clear in the law that they are not members,” Spencer said.

Attorneys Steven Wilker and Kristin Asai defended the Oregon State Bar and several of its board members.

“I think you can look at that statement on its own and say, as a matter of law, there’s no attribution,” Asai told the panel. “Plaintiffs had the opportunity to present any evidence of associational injury, and there was nothing.”

Sitting by designation from the Northern District of California, Senior U.S. District Judge William H. Orrick asked Asai for remedial suggestions if the panel ruled in the plaintiffs’ favor. Asai said the case should be remanded due to the breadth of injunctive relief sought.

"It seems to me that [there should be] a disclaimer going forward, a retroactive and prospective disclaimer saying, ‘statements like this do not necessarily reflect the views of the members of the Oregon bar,'" said U.S. Circuit Judge John B. Owens.

Freeman strongly disagreed, arguing that Crowe “could cry from the hilltops” in disagreement and it wouldn’t matter because he’s not free to quit the bar and continue his career. He also argued the statements didn’t actually address problematic behaviors like lawyers engaging in white supremacy, violence or racism.

“It was, 'this a problem at large' — and furthermore, it went on to attribute that to President Trump and his supporters,” Freedman added. “That is nongermane conduct and that seriously upset the plaintiffs and other members of the bar.”

The panel did not indicate on Tuesday how they would rule.

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