Ninth Circuit revives First Amendment claims against Oregon State Bar officers

(CN) —  For the second time, a three-member panel of judges of the Ninth Circuit reversed a lower court’s dismissal of an Oregon attorney’s case against the Oregon State Bar after the bar published two statements he objected to in its magazine.

In an opinion issued Wednesday, the Ninth Circuit panel determined attorney Daniel Crowe established a freedom of association infringement claim in his complaint protesting bar membership being a requirement to practice law in Oregon and requesting a refund of his dues after the bar published a series of statements in the April 2018 edition of the “Bulletin,” the state bar’s magazine.

The statements condemned white nationalism and faulted former U.S. President Donald Trump for normalizing violence and promoting racism.

The panel found that the context of membership weighed heavily in their decision.

“A reasonable observer understands state bar membership to mean only that the attorney is licensed by the bar,” U.S. Circuit Judge Michelle T. Friedland, a Barack Obama appointee, wrote. The panel found that a reasonable observer would not hold the bar’s expression to reflect an attorney’s personal views.

However, the panel also found that in the particular instance of the statements published in the bar magazine, a reasonable observer would attribute the statements from Oregon Specialty Bar Associations endorsed by the bar to the membership at large.

The first of the two statements included the bar logo and the signatures of six bar officers. The statement addressed the 2017 Unite the Right Rally in Charlottesville, where a group of torch-bearing white supremacists rallied and a counter-protestor was killed after a man drove a car into the crowd. It also addressed the May 2017 attacks in Portland where a man stabbed three passengers aboard a train during a racist rant, killing two.

The statement condemned the acts of violence and “the proliferation of speech that incites such violence.”

The second statement, signed by the presidents of seven Oregon Specialty Bar Associations, supported the first statement and specifically called out then-President Donald Trump’s role in emboldening white nationalism and violence.

“He has allowed this dangerous movement of racism to gain momentum,” the second statement read in part. The bar applauded the specialty bars’ “courageous work.”

The panel found that in context, the reasonable assumption would be that the bar was referring to Trump when referencing “speech that incites violence” due to its proximity to the specialty bars’ statement that specifically criticized Trump and used similar language.

Had the bar clarified that the statement only represented the views of its officers, and not its members, there would not be infringement, the panel said. Since the statement instead included a reference to a “unified bar,” it implied the statements reflected the views of all the members of the bar.

“The implication that OSB was speaking on behalf of all the attorneys it regulates was accentuated by the fact that those attorneys are called ‘members,’ as opposed to something more neutral, such as ‘licensees,’” Friedland wrote.

The panel pointed out that in certain cases infringement is permissible. This is not one of those cases, Friedlander wrote.

“Although preventing violence and racism can relate to improving the legal system, the connection here was too tenuous,” Friedland wrote about the specialty bar’s statement.

The panel also found that the bar qualifies as an arm of the state entitled to sovereign immunity and therefore dismissed it as a defendant but kept the individual bar officers as defendants.

Senior U.S. District Judge William H. Orrick, sitting by designation from the Northern District of California, and U.S. Circuit Judge John B. Owens, both Obama appointees, joined Friedland in the opinion.

In 2018, Crowe and other attorneys who objected to the statements were refunded for their shares of the cost of publishing that issue of the magazine, though he then filed a lawsuit against the bar and several of its officers arguing the bar used its compulsory dues for activities that were irrelevant to the bar’s purpose. He was joined in the lawsuit by the nonprofit Oregon Civil Liberties Attorneys and fellow attorney Lawrence Peterson.

A federal judge dismissed Crowe’s lawsuit in 2019, with U.S. District Judge Michael Simon, an Obama appointee, finding the statements “germane to improving the quality of legal services.”

Crowe appealed the lower court’s decision and the Ninth Circuit partially reversed it in 2021, finding that the bar was not an arm of the state entitled to sovereign immunity. That panel also found that Crowe’s freedom of speech claim failed because the refund remedied any injury, though held that his freedom of association claim could continue.

When sent back to the lower court, Simon found the bar’s statement did not contain inherently partisan or political viewpoints and dismissed the case once more.

Crowe appealed the decision and landed in front of the Ninth Circuit again. This time, the panel changed its test to determine whether an entity is an arm of the state entitled to sovereign immunity to align with Supreme Court authority and found the bar now qualified.

The First Amendment claim has been sent back to the federal court for further proceedings.