Oregon State Bar prevails in challenge to compulsory membership

(CN) — For the second time, the Oregon State Bar defeated a challenge by lawyers who claimed compulsory membership of the bar violates their First Amendment rights after the bar's "Bulletin" published two statements in 2018 condemning the resurgence of white nationalism and the normalization of violence and racism.

U.S. District Judge Michael Simon in Portland on Tuesday granted the state bar's motion for summary judgment and denied the one brought by current and former members of the bar.

The case returned to Simon two years ago after the Ninth Circuit ruled his previous dismissal of the lawyers' lawsuit failed to take into account whether their freedom of association claims under the First Amendment were impinged by mandatory membership itself, aside from their financial dues, of a bar association that engaged in "nongermane" political activities.

The question of germaneness has become central to challenges to compulsory membership of state bars since the U.S. Supreme Court found in 1990 that the dues lawyers pay for bar membership, similar to union dues, can only be used for activities that are germane to the bar's main purpose. In the Oregon case, the Ninth Circuit was satisfied that the lawyers' free speech rights weren't violated because they were refunded $1.15 each for what would have been the use of their dues for the 2018 statements.

This left the issue of whether their freedom of association rights were violated by compulsory membership of the state bar, whose 2018 statements they believed weren't germane to the Oregon bar's mission.

The 1990 Supreme Court Keller decision acknowledged a state bar's mission of regulating the legal profession and improving the quality of legal services is a spectrum and not easy to delineate, according to Simon's new ruling, but it includes advancing a fair, inclusive, and accessible justice system.

The 2018 publication in which the state bar condemned white nationalism and the normalization of violence and racism fell within that mission, he found.

"The statement does not contain inherently political or partisan statements," Simon wrote. "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."

Representatives of the lawyers who brought the lawsuit didn't immediately respond to a request for comment on the ruling.

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