Bench Memos

Law & the Courts

The Court Should Fix This Gap in Free-Speech Law

Free speech is not free if the government can force you to say things you disagree with. That is the principle behind the Supreme Court’s ruling in Janus v. AFSCME (2018) that public-sector workers cannot be forced to pay for a labor union’s speech.

The same idea is being litigated in the context of state bar associations in Jarchow v. State Bar of Wisconsin. There two Wisconsin attorneys are challenging the requirement that those who practice law in the state join the State Bar of Wisconsin and financially support its speech. The bar is one of the state’s most powerful lobbying organizations. It seeks to influence legislation leftward on a wide range of ideologically charged issues, including the death penalty, abortion, felon voting, campaign finance, LGBT issues, and tax reform. And it throws in plenty of criticism of President Trump.

A state forcing nonconsenting attorneys to support any such speech as a condition of having their law licenses is no more acceptable than public sector unions deducting their own fees from the paychecks of nonconsenting workers. But this case has made its way as a cert petition before the Supreme Court, because while Janus arose in the context of labor unions, there is older precedent that provides at least some support to Wisconsin’s scheme.

In Lathrop v. Donohue (1961), a fragmented Court upheld mandatory bar dues in another case arising out of Wisconsin. Justice Hugo Black dissented, and he wrote the following to rebut the notion that law practice was a “privilege” justifying the dues obligation:

The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government.

Nearly three decades later, the Court in Keller v. State Bar of California (1990) would similarly uphold a mandatory bar dues requirement, resting less on its own reasoning than on Lathrop and a more recent precedent that arose in the context of labor unions, Abood v. Detroit Board of Education (1977).

It was enough for Abood that unions provide a procedure for objections to be raised to fees that specifically go toward advocacy. But that unworkable paradigm was rejected by Janus, which overruled Abood. This leaves a contradiction in existing free-speech law between the state bar context and the labor union context. That inconsistency is even more stark when we consider that Wisconsin lawyers are required to be formal members of the bar while the public-sector worker who sued in Janus did not have to join the union that charged him.

Keller was right about one thing: The same principles that apply to labor unions should also apply to state bars. So the overruling of Keller should logically follow the overruling of Abood. But because this is a precedent of the Supreme Court, lower courts cannot do it. That is why the Court should grant the cert petition in Jarchow to correct this anomaly in free speech law. Hopefully it will decide to do so at its private conference tomorrow, when the petition is expected to come up.

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