Litigation Update: Crowe v. Oregon State Bar

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's virtual event. This afternoon, August 16, we discuss the litigation in the Crowe case, which is coming up before the Supreme Court, hopefully soon. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Mr. Jacob Huebert, a Senior Attorney at the Goldwater Institute. Before joining Goldwater, Jacob Huebert served as the Director of Litigation for the Liberty Justice Center in Chicago, where he successfully litigated cases to protect economic liberty, free speech, and other constitutional rights. Mr. Huebert is the lead counsel in the Crowe litigation, which is the topic of today's discussion, so we are very pleased to welcome him to discuss the case up until this point.

 

      Mr. Erik Jaffe will be the moderator and the devil's advocate for today's event. He's a Partner at Schaerr Jaffe LLP. He is the chairman emeritus of The Federalist Society's Free Speech and Election Law Practice Group, and he also wrote an amicus brief in support of the petition on behalf of Protect the First, which is a newly organized non-profit that focuses on First Amendment litigation. So we are very pleased to welcome the two of you this afternoon to discuss.

 

      For our audience, after our speakers give their opening remarks, we will have some moderated discussion, and you'll have the opportunity towards the end of today's event to send in your questions via the Chat at the bottom of your screen -- I apologize, through the Q and A at the bottom of your screen. So if you do have questions for our speaker, please do enter those questions at the bottom of the screen in the Q and A tab. And with that, without further ado, I'll hand the floor over to Jacob. Thank you very much for being with us today. The floor is yours.  

 

Jacob Huebert:  Thank you. Well, we're here today to talk about Crowe v. Oregon State Bar, which is one of a number of lawsuits pending in federal courts across the country challenging state laws that require attorneys to join and pay dues to a state bar association as a condition of practicing law. As you may know, most states require attorneys to join and pay dues to a state bar association to be allowed to practice law. And many of the bar associations that lawyers are forced to join use lawyer's mandatory dues to pay for political and ideological speech. They lobby, they advocate for and against legislation in public policies, they publish articles that take positions on issues.

 

      That would seem to be totally indefensible in light of the Supreme Court's decision in Janus v. AFSCME. If you can't make people who want to work in government jobs pay for a union's political speech under the First Amendment, then you shouldn't be able to make people who want to be lawyers pay for a state bar association's political speech. And that's what we're arguing in Crowe and other cases against mandatory bar associations. And to understand the arguments in these cases, we have to briefly review the Supreme Court's two major decisions that have addressed the constitutionality of mandatory bar associations.

 

      The first, from 1961, is Lathrop v. Donohue. In the interest of time, I won't get too far into the details of that one. I'll just say that Lathrop had no majority opinion, just a plurality, and just said vaguely that requiring lawyers to join and pay dues to a bar association isn't inherently constitutional -- unconstitutional. It didn't apply any real First Amendment scrutiny but really just applied a rational basis [inaudible 4:01]. A state might think that making lawyers join a bar association is appropriate as part of its scheme for regulating the legal profession, and that's good enough for us.

 

      It didn't say anything about whether a bar association's political activity violates an attorney's right to free speech. In fact, it expressly declined to address that issue because it said the record hadn't been developed well enough in the case. That's where the law on mandatory bar associations stood until 1990 when the Supreme Court decided Keller v. State Bar of California. In Keller, some California lawyers challenged the state bar of California's use of their mandatory dues for advocacy on various political issues having nothing to do with regulating lawyers, things like gun control, and a nuclear weapons freeze.

 

      The California Supreme Court, in that decision, actually ruled against the plaintiffs. It said that the California [inaudible 5:12] and therefore the First Amendment didn't constrain what it could say or do at all. It was just like any government agency that they could use our taxes to advocate for things, propagandize, or whatever, and nobody has a call of action against it for that. The U.S. Supreme Court reversed, though. It said that a bar association isn't [inaudible 5:35] but really is more like -- excuse me, it said that it really isn't [inaudible 5:45] courts [inaudible 5:46] would do on behalf of a profession or an industry.

 

      And so the Supreme Court said that for First Amendment purposes, a bar association is not so much like a state agency and is more like a public-sector union. And it said that for First Amendment purposes, bar associations and public-sector unions should be subject to the same constitutional rule. And the constitutional rule for unions had been set forth in the 1977 case Abood v. Detroit Board of Education, in which the Supreme Court essentially condoned mandatory public-sector union fees but said that unions couldn't use mandatory fees for speech that was not germane to collective bargaining on worker's behalf.

 

      And in carrying that into the context of bar associations, the Supreme Court said that bar associations could not use mandatory dues for speech that was not germane to regulating the legal profession or improving the quality of legal services. Keller expressly declined to address a related issue pertaining to bar associations and the First Amendment, and that is whether it violates attorney's right to freedom of association to make them join a bar association that engages in non-germane political and ideological speech even if the lawyers aren't forced to pay for that speech. The Supreme Court said that it wasn't deciding that issue and left lower courts free to address that question.

 

      So that's where the law has stood since Keller. But since Keller, Janus has, of course, overruled the Abood decision and changed the rule for public-sector unions. Janus said Abood was all wrong, essentially, at every step of its analysis and that union fees should be subject to exacting First Amendment scrutiny. And under exacting scrutiny, the government has to show that an infringement of First Amendment rights serves a compelling governmental interest, and also that there's no other way the government could serve that interest that would infringe significantly less on people's First Amendment rights. And of course, in Janus, the Supreme Court said that mandatory union fees couldn't survive exacting First Amendment scrutiny because the government could serve its legitimate interests without forcing anybody to pay a union.

 

      Janus didn't say anything about Keller or bar associations, but it did, of course, completely undermine Keller's reasoning. To the extent that Keller approved of mandatory bar dues, it did so based entirely on Abood, which Janus overruled. So that's the background against which we at the Goldwater Institute, and others, are bringing challenges to state laws that force lawyers to join and pay dues to a bar association.

 

      A case we're particularly focusing on today is Crowe v. Oregon State Bar. In that case, we represent two Oregon attorneys who were motivated to sue their mandatory bar association when they saw that their mandatory dues were used to publish two statements partially criticizing President Trump and his supporters for things having nothing to do, of course, with regulating the legal profession. The district court dismissed our claims in that case because it concluded that Lathrop and Keller just approved of mandatory bar association membership and dues in general and still controlled because Janus hadn't overruled those decisions.

 

      On appeal, though, the Ninth Circuit reversed in part. As we pointed out, Keller didn't say that mandatory bar membership is always, per se, constitutional. Again, it left open the question of whether it violates attorney's freedom of association to make them join a bar association that engages in non-germane speech even if they're not forced to pay for that speech in particular. And so the Ninth Circuit reversed. It didn't say we're all entitled, ultimately, to prevail on that claim, but it said that the district court erred in saying that Keller and Lathrop foreclosed, and so it remanded that claim back to the district court.

 

      The Ninth Circuit affirmed dismissal of our challenge to mandatory dues because it concluded that Keller did control on issue. The Ninth Circuit said that under Keller, it's okay to force lawyers to pay bar dues as long as the bar finds a way to challenge in uses of their dues that they believe are not germane and not properly chargeable to them. If lawyers can do that and they can get a refund for any amount of their dues that was used for non-germane speech, then the Ninth Circuit said there's no problem. And there's no problem even if their dues are used for political and ideological advocacy as long -- even if it's very controversial -- as long as that advocacy pertains to regulating the legal profession or improving the quality of legal services in the state.

 

      And I should say that is the prevailing interpretation of Keller. That is how every lower court, to address this so far, has interpreted Keller. And so that's the subject of our cert petition that we filed in Crowe back in May. The question there is whether laws that force attorneys to subsidize a bar association's political or ideological speech — whether it's germane or not — should be subject to exacting First Amendment scrutiny as public-sector union fees now are after Janus. And I should add, by the way, that if courts did subject mandatory bar dues to exacting scrutiny, there's no question that they would fail it.

 

      Remember, exacting scrutiny requires the government to show that there's another way it could serve its interests that would infringe significantly on people's First Amendment rights. But, of course, the government could regulate lawyers without forcing them to join a bar association that engages in political speech. We know that because 20 states all ready managed to regulate the legal profession without forcing people to join a bar association that can engage in political or ideological speech. And if they can do it, there's no reason to think that all the other states couldn't do it too.

 

      As I said, our cert petition asked the Court to decide whether bar dues that subsidize speech should receive exacting scrutiny. But some people challenging mandatory bar dues have assumed or conceded that to say that exacting scrutiny applies, the Supreme Court would have to overrule Keller. We don't take that view. In our view, the holding in Keller was that bar associations are subject to the same constitutional rule as public-sector unions. That's what Keller said. And, of course, at the time Keller was decided, that meant total deference to the government and no exacting scrutiny.

 

      After Janus, though, it should mean that bar dues get exacting scrutiny just like union fees do now. The Ninth Circuit purported to be following Keller and acted as though we were urging it to defy Keller, but we say that it's the court that actually violated Keller by concluding that bar associations and unions should now be -- not be [inaudible 14:30] to the same constitutional rule, even though Keller said they should, after Janus. We say that the Ninth Circuit, and other courts that have reached the same conclusion, favor Keller's dicta over its actual holding. But we also argue in the alternative that if Keller does control, as the Ninth Circuit said, then the Court should overrule Keller.

 

      But again, to the extent that Keller approved of mandatory bar dues, it was based on Abood, and Abood has been overruled, so Keller just doesn't have a leg to stand on anymore. In fact, Justices Thomas and Gorsuch have all ready recognized that in a dissent from a denial of cert in a previous bar association case. There were ten amicus briefs in support of our petition in Crowe, so we're hoping the Court will grant the petition when it returns after the summer break.

 

      Meanwhile, there are other cases on this issue pending in the federal courts. The most notable one is McDonald v. Longley, in which the Fifth Circuit held at Texas's requirement that attorneys join and pay dues to the Texas Bar violates attorney's First Amendment rights. The court concluded that the Texas Bar engages in non-germane speech, and it said it violates attorney's free association to make them associate with the Texas Bar when it engages in that kind of non-germane speech.

 

      Forced association, the Fifth Circuit said, couldn't survive exacting scrutiny. The court said that making lawyers pay dues to the Texas Bar also violated their First Amendment rights, not because dues are inherently unconstitutional because Texas didn't provide good enough safeguards to ensure that dues wouldn't be used for non-germane speech.

 

      When it comes to germane speech, the Fifth Circuit actually took the same view as the Ninth Circuit in being that states can pay for a bar association's political speech as long as it's germane, even if it's very [inaudible 16:49] -- I'm sorry, I seem to have lost my connection there, so I hope [inaudible 16:59] toward the end of my remarks.

 

Evelyn Hildebrand:  Great, thank you. Yes, definitely -- definitely continue. And I apologize. It does look like your connection might be a little bit unstable. I don't know if there's anything that can be done on your end, but I just did want to alert you.

 

Jacob Huebert:  Yeah, so I don't know where I left off, but I said we're hopeful that the Court will grant the cert petition in Crowe when it comes back from its break.

 

Erik S. Jaffe:  It sounds like it's cutting out again.

 

Jacob Huebert:  [Inaudible 17:27] courage [inaudible 17:32] --

 

Erik S. Jaffe:  All right. Well, perhaps while we sort out connection issues, I suppose I can step in for a little bit until we get Mr. Huebert back on a stable connection. As Evelyn mentioned earlier, I have an amicus brief in this case written with my partners and associates on behalf of a group called Protect the First. And while we certainly agree that the demise of Abood is largely fatal for Keller, I'm not so sure we necessarily agree that the Ninth Circuit, from where it sat, got it wrong primarily because the Supreme Court had this sitting right in front of it in Janus.

 

      The dissent in Janus expressly said, look, it's difficult to imagine how Keller survives this, and the majority said nothing. So either conceding the point or refusing to sort of say you're right, and we should revisit that too. It's unclear what in the world the majority did, but the fact that they did nothing suggests that it's at least a potentially open question whether Keller can survive Janus. So from a lower court's perspective, saying when the Supreme Court does something that seems radically inconsistent with past precedent but declines to overtly overrule past precedent, it's the obligation of lower courts to stick with the plan until the Supreme Court tells them not to.

 

      In the situation of uncertainty, the tie goes to the past decided case. And whether you want to call it dicta, or whether you want to call it something else, it's clear that every circuit since Keller has understood that it's okay to have bar dues and they have a broad notion of germaneness, all of which I think is terrible law. It is really appallingly bad reading of both Abood -- of all those earlier cases that are of the First Amendment, generally. But be that as it may, that's precedent.

 

      So if we're going to be respectful of precedent — and in general, I'm a fan of circuit courts being respectful of precedent — I'm not sure the Ninth Circuit did the wrong thing. They pointed out that they recognized the tension between Janus and Keller. They pointed out that they felt they were bound by it under other precedent to follow the rule until the Supreme Court itself said otherwise. I don't know that I want to really ask them more than that without getting lower courts jumping in and messing with the Supreme Court precedent.

 

      I'm not sure that's a great systemic view, but that's exactly why, of course, the Supreme Court needs to take the case is. The lower courts are doing it right. There's not going to be a meaningful split on the Keller question if other courts similarly are respectful of the limits of overruling precedent. And so, of course, the Supreme Court should take the case. So while we fully agree -- I see we have Jacob back. Jacob, how are you doing there?

 

Jacob Huebert:  Well, hopefully, okay with this -- I don't know why my connection is going out, but hopefully, it won't happen again.

 

Erik S. Jaffe:  No problem. I've been telling the audience that I think that while I fully agree with you that Janus puts a nail in Keller's coffin, that Keller was a terrible decision to start with, as was Abood. And we've done an amicus brief in support of your petition, of course, which I've told them about. I'm not so sure the Ninth Circuit, or other circuits, have gotten it wrong in the sense of declining to take that seemingly logical step of dumping Keller, given that the Supreme Court had this very point staring it in the face in the midst of Janus and declined to take that step. It declined to even comment on it.

 

      You could imagine a footnote would have said we don’t really know what happens to Janus, but we now consider it an open question that we'd love to hear the lower courts opine on. They could have at least said that much, but they didn't. So how is that we can really fault a circuit court for saying, as they often do, okay, you had the chance to tell us to chime in, you didn't, so we're going to follow your old precedent until you tell us otherwise.

 

Jacob Huebert:  Well, of course, it's not surprising that they would take a relatively restrained approach when it comes to that. We think we have a good argument about what Keller did and didn't decide. And there's no question that Keller said two things. It said same constitutional rule, and it said this thing about germane and non-germane expenditures -- about germane being implicitly -- at least, being okay, and non-germane being not okay. Well, now those things can't both be true. Courts have to reject one or the other. Either it's the same constitutional rule, or its germane is okay.

 

      And we would say between those two things, the thing that's more at the core of Keller is that the First Amendment applies, and it means that they need to be treated the same as public-sector unions. And so if you're going to put part of Keller aside, it should be the ancillary part that relies on Abood, not the core part. And remember, it was reversing a California Supreme Court decision that said no First Amendment protection here at all. So that was the real issue at the core of the case, does the First Amendment limit what bar associations can do with attorney's money?

 

      And the Court said yes, they should be treated the same as public-sector unions, and so we argued that's a core of Keller's holding is the extent that you have to put part of Keller aside. It shouldn't be that part. It should be the part about germane versus non-germane expenditures. Yet not wildly shocking that the Ninth Circuit wouldn't go for that, but I do think it's a solid argument, and it's a reason why the Supreme Court -- if it doesn't like the idea of overruling another decision could avoid overruling another decision while at the same time providing protection for First Amendment rights.

 

Erik S. Jaffe:  While I generally agree with you, I'm not exactly shocked that the Ninth Circuit went there. It seems that the Fifth Circuit went there too. It's not like that very different court which is -- probably has sympathies in a different direction on some of these First Amendment questions -- went there too.

 

      So I have another question for you. You're not challenging, as I understand it, or at least not in this case challenging, the membership in general and a requirement for paying money for true regulatory functions. Right? I saw a footnote — footnote 13 on page 17 — suggesting that you guys are not challenging memberships in general.

 

Jacob Huebert:  Well, certainly on this petition because the Ninth Circuit remanded the mandatory membership to the district court, and it remains there now. So the only thing we are in a position to ask the Supreme Court to address in this case is the compelled subsidies for bar association speech. And it presents that issue very cleanly because the Oregon State Bar doesn't deny that it engages in political and ideological speech. It just says that all of its speech is germane. And of course, our view is, it shouldn't matter whether it's germane, just like it didn't matter in Janus.

 

[CROSSTALK]

 

Erik S. Jaffe:  Sure. Now, do you concede any of these sort of speech or speech-like activities? I mean, obviously, you are challenging. But for the purpose of this cert petition, I understand that you're challenging all membership now back at the district court level. So putting that aside, let's assume for a moment it's okay to make folks join a bar for regulatory functions. Do you challenge all speech, or do you concede that there's some version of speech activity that would be acceptable? To take a simplest example, say recommendations on ethical rules or recommendations on the bar test — how hard it should be, what questions should be on it, cut-offs — all of that which strikes me speech or speech adjacent.

 

Jacob Huebert:  Certainly, recommendations with respect to ethical rules are a kind of political speech because the rules that govern lawyers obviously affect what lawyers can and can't do. They affect clients as well. They are things on which people could disagree. It's not like -- it's not something susceptible of just objective measurements or something. This is something -- these are issues on which people will disagree and on which nobody should be forced to support one side or the other.

 

      Now, you can get into some really narrow regulatory stuff. Maybe the content of the bar exam would be a little more like that. Our view in general is, if the bar associations were truly constrained to purely regulatory functions — things like screening applicants for the bar, maybe some stuff related to discipline, and handle registration, things like that — then we really wouldn't have the First Amendment issues that we're complaining about anymore.

 

      California and Nebraska provide an example of how states might transition to a different scheme where there's still a bar association, but you don't have this kind of constitutional problem. In those states, they had a mandatory bar association [inaudible 27:09] they bifurcated it. They took part of it and made it mandatory still, but that part is strictly lidded to performing certain enumerated regulatory functions. And then everything else the old mandatory bar used to do will now be done by a [inaudible 27:27].

 

      So they're doing the things like putting on conferences and seminars and publishing magazines and all that, lobbying if they want to do it. They're doing all that sort of thing while the mandatory component just does the most basic regulatory stuff. And if other states moved --

 

[CROSSTALK]

 

Jacob Huebert:  -- problem with it.

 

Erik S. Jaffe:  So let's go in the other direction for a minute. Let's say a state supreme court said fine, I get why this private organization should be taking your money and spending it for their speech, but we're not going to take a more active role, and we're going to hire a court employee whose role is bar supervision, and we're going to review their seminars, and we're going to review the bar journal, and we're going to make sure that as a court we think this is suitable and appropriate and tell them no, we won't -- not. Would that be government speech that is now permissible?

 

Jacob Huebert:  Which [inaudible 28:31] is the government -- are you suggesting is the government speech?

 

Erik S. Jaffe:  If the courts took over a more active supervision of what is otherwise a normal mandatory bar. So the example I'm thinking of, of course, is Johanns, where in the beef council it was, obviously, beef producers getting together and making up their own ads and their own name, quite frankly.

 

      But Justice Scalia says because the government, the Department of Agriculture, had an active supervision over all the speech that went out and could veto things and add things whenever they wanted, it was converted into government speech. And I'm wondering whether or not a state supreme court could do exactly the same thing and be in a position like Johanns, even though this otherwise private seeming entity was doing all the first cut stuff.

 

Jacob Huebert:  Well, as I recall in Johanns, it really was an extreme [inaudible 29:22]. In the opinion, it was characterized as an extreme degree of control where the government was approving most of what they said before they put it out, so the government really was controlling what this entity was saying or not saying. And if state control of a bar association reached that degree, then certainly they would have your argument that what they are doing and what's permissible under Johanns.

 

Erik S. Jaffe:  So in Johanns, the level of control was just -- it was sent to them for review, and they had the option. They actually did very little. So the question then is -- and look, I think Johanns is a terrible decision. So I'm not even advocating this. I'm just curious how it fits into your theory of the case to suggest that maybe the state bar steps up to the plate -- the state supreme court steps up to the plate or the office of -- the administrative offices of the court step up to the plate, higher some employee who otherwise would have worked for the bar and now works for the state, and says, well, government speech.

 

Jacob Huebert:  Well, I can certainly imagine in the [inaudible 30:27] of these that -- of Keller being overruled or something similar coming from the Supreme Court, they might move to a model like that to try it and try to say we're not doing what you say we can't do. Then, of course, it might depend on exactly what's going on. Is this real control? Is it not? Do we need to reconsider Johanns? As far as I know, no actual situation is presenting that issue. But certainly, it would change the arguments on both sides if they made that kind of move.

 

Erik S. Jaffe:  All right. So I'll have one more question, and then we'll open it up for audience members. My other question is, if I recall properly, the clients in Crowe got a — admittedly minimal — refund of a dollar and change, which is presumably the piece of their dues that went to publishing that bar journal, or maybe all the bar journals for the year. I don't really know. If a solution like that were proposed where they got a more substantial refund that was comparable to the things that you would identify as more political, would that solve this problem? Is that one of the answers? Or are you just arguing that in the alternative?

 

Jacob Huebert:  No, refunds won't solve this problem because, under the First Amendment, you have a right not to subsidize somebody else's speech in the first place. And a refund after the fact isn't good enough. That would be true in every other context. It's true now in the union context. It's not good enough for them to give you a refund after the fact for whatever they might be using your money for. And lawyers shouldn't have to police this also. They objected to this because they happened to open the bar magazine and read it and see that there.

 

      But to really guard against this sort of thing, you have to do that for every article in every issue, and you'd also have to pay attention to whatever other notices the bar gives you of all the things it's doing if they do, which of course in many cases they don't, and then go to the trouble of affecting and then they're -- do they have arbitration procedures set up to deal with these objections? And of course, doing any of this, the monetary [inaudible 32:43] award is so small compared to benefit, even if you care a lot about First Amendment rights, it's just not practical to expect anybody to go through that process.

 

      The Court recognized that for government workers in Janus that it wasn't realistic to expect them to object when their dues are being misused, and it's also true of lawyers. Maybe even more true of lawyers because if a lawyer wants to object to what the bar association is doing, it's going up against an entity that's partly responsible for regulating it. And I know from going out and talking on these issues that they don't want to stand up to their bar association.

 

      If there's a close case or there's a -- whether to allow some grievance against them to proceed or whatever, they don't want to be the person who got on the bar association's bad side. Just pay the extra little bit of money and don't worry about it is the attitude of many a rational attorney on this. So it's not enough to give them a way to object and get refunds. They just shouldn't have to be dealing with this at all just to be allowed to engage in a profession.

 

Erik S. Jaffe:  All right. Thank you. Let's open it up to questions from our audience if there are any. And if not, I have a list of others that I'm happy to continue our time with. But let's give others a chance if there's anyone out there. You can use your Q and A function to send in a question, and I will -- if it is not completely nuts, I will pass it along [Laughter]. And if it is nuts, I will exercise the moderator privilege of deciding that for myself. So to those of you who I offend, too bad. And that's my free speech rights, particularly.

 

      But while we're waiting, I guess I can ask the related question to this is. Do you think a bar -- well, assuming we can have a mandatory bar association at all, do you think a bar association could sponsor a public or semi-public forum? So I think of all these panels that bars sometimes sponsor on how to defend a criminal client, how to write an appellate brief, how to do this, how to do that. And obviously, some of them have a political flavor to them. If it's how to defend indigent clients, how to go up against evictions, how to defend LBGTQ clients, all of these at some level touch upon political issues, though they may not as a panel express an opinion on them, they do provide a platform very much like perhaps a bar magazine that had a debate on any given issue. Do you think that would still be a First Amendment problem to create a forum of that sort with mandatory dues?

 

Jacob Huebert:  I do because the First Amendment should protect you against being forced to propagate ideas that you might disagree with. And just because a debate presents two sides of an issue doesn't mean it presents all sides of an issue. And even if you do favor one side or the other, if you don't want to propagate some particular person's speech on an issue or the way that they're talking about it, you shouldn't have to do that at all just to be allowed to practice law. If people want to [inaudible 35:59] off protesting these kinds of issues, they should do it through people who want to pay that sort of thing, not with money from people who object to paying for that sort of thing.

 

Erik S. Jaffe:  So we have a question from an attendee asking whether the mandatory bar exercises government powers — I think is the gist of it — given that it -- lawyers represent people before the judiciary. And he's wondering whether the court or the bar can dictate things other than, say, speech. He's talking mask mandates, social education about things, or even limiting people coming into court. So I assume the gist of this is sort of where is the line -- if they're governmental in nature, where's the line as to how far they can go? I'm inferring from this here.

 

Jacob Huebert:  Well, the Supreme Court said, rightly, in Keller that they don't really exercise any governmental power. They typically just advise the state supreme court on what the rules governing lawyers should be, who should be admitted, who should be disciplined, but they don't actually exercise any authority with respect to those things. The authority, with respect to all of them, is with the courts themselves. And in some states, you have bar associations now that don't even perform that advisory role.

 

      For example, we have a lawsuit against the Louisiana State Bar Association, and it's no longer involved with the admission type issues anymore or the disciplinary issues. That's been separated off into a different governmental agency. So then you have the question of why is anybody being forced to pay for this mandatory trade association that really has nothing to do with regulating a legal profession anymore? So I -- these entities -- of course, maybe there's situations I'm not familiar with in some states where it's different. But as a general matter, these entities do not actually advise any governmental authority.

 

Erik S. Jaffe:  Great. Thanks. While we're waiting for other questions to roll in, if people have them, let me go back a step and just ask you a more macro question. Because, why not? It's fun. It strikes me that the notion that you can't be required to support speech of others, I don't really see where that comes from. I understand that we said you can choose not to speak. But of course, this is not actual speech. It's just payment for speech. We do that through taxes all the time. The government speaks. The government sets up limited-purpose public forums in lots of situations.

 

      It sounds to me to sound more in terms of an establishment clause violation, which of course, doesn't exist under the speech part of the First Amendment. So it sounds like you're incorporating establishment clause reasoning — i.e., you can't be forced to support a church, you can't be forced to support other people's opinions — into the speech side of the First Amendment where it doesn't seem to be. What's your reaction to that?

 

Jacob Huebert:  Well, the compelled subsidies for speech had long been deemed to be as objectionable as compelled speech itself. I'm not in a position to give you all the originalist's arguments today, but I think in a lot of contexts that's not really very controversial that you can't be forced to contribute to advocacy organizations that you don't want to support. The only times it's been condoned, really at all, by the Supreme Court are in the public-sector union context and the bar association context. And --

 

Erik S. Jaffe:  Well --

 

Jacob Huebert:  -- as Janus pointed out, really for no good reason.

 

Erik S. Jaffe:  Well, but Justice Scalia, for example, in the NEA case, said whatever that is, it's not a First Amendment violation. He thought compelled payment of money was not a compelled speech problem. So in terms of a notion that you were giving money to the NEA -- forced to give money to the NEA, and they would give it to people who had "Piss Christs" and things like that. He viewed that as different.

 

      And given the example of saying forced to pay money to the Democratic Party, let's say, he would treat that as a violation of voting or something else, not of the First Amendment because it's not an infringement upon speech. It's a -- you take money and use it for something else. How is that -- do you think -- I mean, look, maybe it's not something that you want to engage because, of course, the Court's not there at the moment. And nobody took --

 

Jacob Huebert:  Yeah. Well --

 

Erik S. Jaffe:  -- Justice Scalia up on that.

 

Jacob Huebert:  Right. Well, and of course, if I recall correctly, Justice [inaudible 40:46] also said there was no problem with political patronage, making somebody support a political party to get a government job. And --

 

Erik S. Jaffe:  Yes.

 

Jacob Huebert:  But, of course, that's not the prevailing view. That's not a widely excepted view. If the bar -- I don't know what -- if the Supreme Court takes this up, I'm not sure what the bar associations are going to argue, but they probably would have to retreat to something like that because they can't fit it into exacting scrutiny if exacting scrutiny applies. They may -- maybe they'll have to try something like that to say that compelled subsidies for speech like this just shouldn't be treated like that.

 

      Maybe they try to go back to the idea that those really are state agencies and try to get the Court to change its mind on that issue instead of getting it to bring Janus over to the bar association context. So maybe we'll have to dig into and contend with these issues in more detail if we get to a point where the bar association is forced to actually defend this in some way instead of just being able to say Keller and Lathrop said it's all okay and mostly getting away with that so far.

 

Erik S. Jaffe:  So now, let's talk a little bit -- we're still waiting for any more questions, so for those of you listening, please type away, but I'll fill some space while we're there. Let's talk a little bit about predictive sort of results from this case. The Court has seemingly been reluctant to take some of these cases. You pointed out earlier that there have been a few dissents from denial of cert.

 

      The Court has also been reluctant to take a number of post-Janus cases just in general, and lots of contexts where -- look, I'm with you on these cases. I've filed amicus briefs in a lot of these cases. And I've been disappointed repeatedly by the Court's seeming reluctance to jump down this path further post-Janus. What do you see as the cause of that reluctance? And what do you predict for the sort of wave of cases, yours included, that are sort of pending or soon to be pending?

 

Jacob Huebert:  Well, it's hard to speculate on why the Supreme Court doesn't take certain cases. Of course, Janus was a rather controversial decision on the -- among some. The last, oddly, [inaudible 43:05] is much animated now [inaudible 43:08], and it could be that the Court doesn't want to push that any further for the moment given all else that's going on with the politics of the Court and everything. Maybe there's just a reason why they've wanted to [inaudible 43:20] from that [inaudible 43:21].

 

      Of course, when the Court denied cert on some of these things, including, I believe, both of the bar cases on which it's denied cert, I believe the Court's composition was different. I believe that was before Justice Barrett joined the Court. And so, with a different composition, maybe we'll see a different attitude toward some of these post-Janus issues. We haven't so far. They haven't taken up any other post-Janus type cases. But they haven't had a chance with the bar case yet, so we'll see if that may change what they do with respect to the bar cases.

 

      And as to which one they would take or when they would take it, of course, it's hard to speculate. The Court may well be aware of this coming along from the other circuits, but I don't know that there would be as much reason to hold off based on that [inaudible 44:14] been before because now we have decisions addressing this in some way from the Fifth, Sixth, Ninth, and Tenth Circuits now. We could [inaudible 44:30] bars them from doing anything about compelled subsidies --

 

Erik S. Jaffe:  There's a question that came in from one of the listeners asking about whether the Oregon State Bar is the only defendant and have other bar associations filed its amici. Once we have Jacob back unfrozen, I'll let him answer that in the Ninth Circuit and the district court. I can answer that, to some degree, in the Supreme Court, which is the Oregon State Bar, and several members of their board of governors, I think, were the defendants. Other bars were not a defendant in this case. It was by Oregon bar members, and no other bars have filed in support only because the Oregon bar waived their right to respond. So they haven't responded.

 

      People in support of respondents generally don't file before -- at the cert stage. I'm sure many, many bars would file it if it gets to the merit stage. So I don't know, Jacob, if you've heard the question, which is, have other bar associations filed its amici? I gave the answer about why that's not happened yet and is unlikely to happen at the cert stage given the waiver, but perhaps you can answer that as to the Ninth Circuit stage where -- in the Ninth Circuit were other bar associations that came in as amici?

 

Jacob Huebert:  Yeah. Of course, there have not been briefs on the other side of the Supreme Court. Of course, if the Oregon State Bar itself doesn't think it's worth weighing in, the other bar associations [inaudible 46:00]. We'll see if the Court makes the Oregon State Bar file response or asks it to file a response. In the Ninth Circuit, they did get support from the State Bar of Arizona, of which I am a mandatory member. [Inaudible 46:14] use of my dues. They think it's proper, but they gave me a little refund anyway.

 

Erik S. Jaffe:  To what do you attribute, if anything — reading the tea leaves — why there hasn't all ready been a call for a response? It seems to me with almost ten amici, I think, and an issue that's cropped up all over the place that is fully dependent upon Supreme Court precedence, and only the Supreme Court can fix it, you'd think in a memo they would ask for a response. Why do you think they're --

 

Jacob Huebert:  Right.

 

Erik S. Jaffe:  -- waiting?

 

Jacob Huebert:  Well, I don't know. That's, of course -- this is a question I ask myself, and it's hard. Of course, these things are very hard to know. We don't know what goes on in there. At least, I don't. Maybe it has to do with whose desk it's sitting on. I just -- I have no idea. You would think -- in my experience, you know, given other cases, which I've seen responses requested, and which I thought certain [inaudible 47:07]. I don't know why there has not been a request for a response here yet. But of course, I'm hopeful that we'll get one soon.

 

Erik S. Jaffe:  Yes. I'm hoping that it's got more to do with the mechanics of the summer list and when full memos get circulated to justices, most likely to call for a response, and so maybe this is sitting somewhere in the ether at the Court waiting to be read. And then we'll get our call for response as we approach the conference date.

 

Jacob Huebert:  That's what I'd like to think.

 

Erik S. Jaffe:  Yes. Hopefully. Well, I think I've covered my range of questions. I'm not seeing a lot of others. Is there something else that you would like to chat about this case that we haven't covered or that you're, you know — effort to get in a quick intro left on the table that you — feel free to put -- use our few minutes to -- if there's more you'd like to say?

 

Jacob Huebert:  Well, it occurs to me there's just -- there was something you mentioned that I didn't quite address. And that is the idea that we -- we're forced to pay taxes to agencies, and that's fine, they can do whatever they want. Why isn't this like that? Where you're forced to pay taxes to an agency, and they can do whatever they want, so why should we single out bar associations, or unions for that matter, and care about that kind of forced subsidy in particular?

 

      And I think the answer there is you have to draw the line somewhere as to where compulsion is okay and where it isn't. And when it comes to our taxes, of course, those are going to be used to fund speech. I mean, they pay the salaries of legislatures who get on the floor of the legislature and advocate for and against things. [Inaudible 48:56] kind of inconceivable to have a government that is funded through tax dollars where people aren't being forced to pay for speech. We kind of have to admit that's inevitable, even if [inaudible 49:10]. But certainly, we can ensure that people aren't forced to subsidize private entities and their speech directly. At least we can do that and as long as we can do it, we should.

 

Erik S. Jaffe:  Well, with that, unless Evelyn has some more, thank you very much. I've done my best to push you on a subject that I, however, happen to agree with you on. So hopefully, our audience has gotten a little flavor of some of the potential arguments on the other side. And Evelyn, I hand it back to you. Thank you.

 

Evelyn Hildebrand:  Great. Thank you very much. I'll just add the thanks of The Federalist Society to both of our excellent speakers this afternoon. If anyone in our audience has questions or comments, or concerns, please send those into [email protected]. Thank you all very much for joining us this afternoon. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.