WASHINGTON - The State Bar of Texas’ speech is government speech, so “the Free Speech Clause has no application” to its expressive activities, according to a petition the Bar’s Board of Directors recently filed with the U.S. Supreme Court.
Back in November, a trio of attorneys filed a petition for writ of certiorari asking the high court to hold that members of a mandatory bar cannot be compelled to finance any political or ideological activities with their dues.
The challenge was brought by attorneys Tony McDonald, Joshua Hammer and Mark Pulliam, who sued the Board of Directors for the State Bar of Texas alleging First Amendment rights violations under Janus v. AFSCME – a 2018 Supreme Court decision that found that millions of public servants no longer have to pay a government union as a condition of employment.
Texas attorneys are required to join the State Bar and pay mandatory dues.
The attorneys argue that they have little to no say on how the Bar spends mandatory dues – a violation of First Amendment rights, and that they shouldn’t be forced to fund the bar in order to work in their chosen profession. They also argue that the Bar goes beyond its regulatory function by engaging in extensive political and ideological activities.
On Dec. 30, the voting members of Board filed a conditional cross-petition for a writ of certiorari with the Supreme Court, questioning whether the Texas Bar, which is “a public corporation and an administrative agency of the judicial department of [the Texas] government,” qualifies as a government agency for purposes of the government speech doctrine, such that its speech is “not subject to scrutiny under the [First Amendment’s] Free Speech Clause.”
“This Court’s subsequent case law demonstrates that the State Bar of Texas’s speech is government speech, so ‘the Free Speech Clause has no application’ to the Bar’s expressive activities— wholly undermining the basis for the plaintiffs’ First Amendment claims,” the Board’s petition states.
The Board is arguing that the attorneys’ petition for a writ of certiorari should be denied, but If it is granted, then its conditional cross-petition for a writ of certiorari should also be granted.
Case Background
The legal battle over mandatory bar dues in Texas has been waged for the past three years. A federal judge granted the Board summary judgment and the case ended up before the U.S. Fifth Circuit Court of Appeals.
“In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights,” the Fifth Circuit’s opinion states.
On Nov. 24, the attorneys filed their petition for writ of certiorari, which states that the Fifth Circuit correctly held that they could not be compelled to support the Bar’s political advocacy in matters unrelated to the legal profession, but found itself constrained by a Supreme Court precedent (Keller v. State Bar of California) to reject their First Amendment challenges to all of the other activities at issue because they were germane.
“This Court should grant certiorari and hold that members of a mandatory bar cannot be compelled to finance any political or ideological activities, and cannot be compelled to join a bar that engages in such activities,” the petition states. “Although Keller did contemplate a limited role for a mandatory bar whose activities are carefully circumscribed, nothing in Keller gives bar associations a blank check to use coerced dues to support highly controversial and ideologically charged activities such as those challenged here.”
In its petition, the Bar states that this case provides a suitable vehicle for reconsidering Keller’s refusal to apply the government speech doctrine to integrated bars.