Amicus Curiae Brief Filed to Protect The First Amendment
The U.S. Supreme Court will consider two challenges to mandatory bar membership in January 2022. Lawyers in Oklahoma and Texas who are forced to join their states’ bar associations as a condition of practicing law filed petitions for writs of certiorari asking the Court to affirm the First Amendment rights of the hundreds of thousands of lawyers in states with mandatory bar associations. The Pelican Institute for Public Policy filed an amicus curiae brief in Schell v. The Chief Justice and Justices of the Oklahoma Supreme Court, et al.
Mark Schell is an Oklahoma attorney who objects to the use of his bar dues for political and ideological speech. The Oklahoma Bar Association uses attorney bar dues to lobby the Oklahoma legislature and to make political and ideological statements in its magazine, The Oklahoma Bar Journal. Examples of political or ideological speech from the publication include criticism of the legislature for not regulating the oil and gas industry to restrict the use of injection wells, the role of “dark money” or “special interest groups” in elections, and the oil and gas industry’s political influence.
Mr. Schell asks the U.S. Supreme Court to confirm that exacting scrutiny is the appropriate level of scrutiny for mandatory bar dues. The Supreme Court held in Keller v. State Bar of California that compulsory bar dues and union fees must be subject to the same constitutional rule of First Amendment scrutiny. In Janus v. AFSCME, a 2018 decision, the Court announced that exacting scrutiny is the constitutional rule for union dues. Therefore, Mr. Schell argues, exacting scrutiny is the appropriate rule for analyzing the use of compulsory bar dues when the bar association makes statements on its members’ behalf. Using member dues for political and ideological speech cannot survive an exacting scrutiny analysis and violates lawyers’ First Amendment rights.
The Pelican Institute filed an amicus brief in support of Mr. Schell’s cert petition to emphasize for the Court that the problem of bar associations using member dues for political and ideological speech exists nationwide. The Louisiana State Bar Association’s (LSBA) use of member dues to lobby for or against legislation unrelated to law practice is well documented. For this brief, we emphasized for the Court that the LSBA continues to use bar dues to make statements unrelated to the legal profession even after the Fifth Circuit ruled in McDonald that mandatory bars may only use member dues for “germane” speech.
The Court will consider both Schell and McDonald in a conference currently scheduled for January 7, 2022.
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