Ninth Circuit Allows Free Association Claim Against Oregon Bar Association

​When a professional association makes a political statement that some members disagree with – and membership in that association is compulsory – are the First Amendment rights of the dissenting members violated? The answer, according to the Ninth Circuit is … well, it’s complicated. 
 
Oregon attorney Daniel Crowe filed suit against the Oregon State Bar (OSB) following publication of the April 2018 issue of the “Bulletin,” the state Bar’s dedicated publication. In that issue, the Bar published two statements on “White Nationalism and [the] Normalization of Violence.”
 
The first statement, emblazoned with OSB’s logo and signed by six OSB officers, responded to the 2017 white supremacist rally in Charlottesville, condemning violence and “the proliferation of speech that incites such violence.” So far, not much a decent person could disagree with there.
 
The second statement, featured on the opposite page and signed by the presidents of seven Oregon Specialty Bar Associations, built on the first statement and criticized President Trump’s actions in “allow[ing] this dangerous movement of racism to gain momentum.”
 
You don’t have to be a Trump supporter to see the shoehorning of members in the service of a debatable political proposition.
 
Crowe, joined by other attorneys as well as a non-profit called Oregon Civil Liberties Attorneys, filed suit against OSB, arguing that the organization’s use of mandatory dues for activities not “germane” to its purpose violates Crowe’s right to freedom of speech and freedom of association.
 
The case so far has taken a meandering path.
 
First, a federal judge dismissed Crowe’s lawsuit, finding that OSB’s activities were in fact “germane to improving the quality of legal services.” Crowe appealed.
 
Then, the Ninth Circuit upheld the dismissal of Crowe’s freedom of speech claim (noting he had received a refund for his portion of the costs of the “Bulletin” publication, thus satisfying any injury). At the same time, the court found that Crowe’s freedom of association claim could proceed.
 
Finally, the lower court, on remand, held that OSB’s predominantly non-partisan, germane activities precluded the freedom of association claim.

Still with us?
 
Back to the Ninth Circuit, which upon another appeal has now found in Crowe’s favor. Writing for the court, Judge Michelle T. Friedland said:
 
“Crowe has demonstrated an infringement on his freedom of association because he objects to certain communications by the Bar that would reasonably have been imputed to the Bar’s members. We also hold that the infringement was not justified because the communications in question were not related to the Bar’s regulatory purpose.”
 
A related question – whether the OSB is entitled to sovereign immunity as an arm of the state – was also addressed. The court found that it is, though Crowe’s claims against individual officers may now proceed.
 
This is a complicated case. But the simplest solutions are to either scale back or eliminate mandatory membership in the Bar altogether, or for the Bar to refrain from making political statements on behalf of its members.
 
OSB published a statement condemning violence right next a statement condemning Trump’s role in promoting violence. If it isn’t an explicit endorsement of that particular statement, it’s close enough to seem so to a reasonable observer.