The Oregon State Bar prints a magazine called the Oregon State Bar Bulletin, intended mainly for its members. The Bulletin includes articles on legal writing, profiles of individual lawyers, articles about recent legal developments, announcements of upcoming educational classes and events, and some advertising. The advertising is mostly by law firms announcing new associates and partners and by providers of services to law firms. As a matter of policy the Bulletin does not accept political advertising.
In April 2018 the Bulletin printed two statements on facing pages, inside a single border, in the manner of an advertisement. The statement on the left was entitled "Statement on White Nationalism and Normalization of Violence." It was signed by three members of the Bar's Board of Governors, two Bar employees, and the chair of the Bar's Advisory Committee on Diversity & Inclusion. The Bar's statement condemned acts of violence such as the Charlottesville riots and the Portland MAX train attack in 2017 that left one person dead, and "the proliferation of speech that incites such violence." It ended with the following high-flown but otherwise innocuous paragraph:
In today's troubling climate, the Oregon State Bar remains committed to equity and justice for all, and to vigorously promoting the law as the foundation of a just democracy. The courageous work done by specialty bars throughout the state is vital to our efforts and we continue to be both inspired and strengthened by those partnerships. We not only refuse to become accustomed to this climate, we are intent on standing in support and solidarity with those historically marginalized, underrepresented and vulnerable communities who feel voiceless within the Oregon legal system.
On the facing page, inside the same border, appeared the "Joint Statement of the Oregon Specialty Bar Associations Supporting the Oregon State Bar's Statement on White Nationalism and Normalization of Violence," signed by the presidents of seven of the state's specialty bar associations. (Note to the public: in Oregon "specialty bar association" does not mean groups of lawyers who specialize in particular practice areas; it means associations of lawyers of shared ethnic background, the Oregon Women Lawyers, the Oregon Gay and Lesbian Lawyers Association, and the Oregon Minority Lawyers Association. The group excludes associations based on religious or geographic affiliation.) The Bar's statement named no names and pointed no fingers. The statement of the seven specialty bar associations was more direct:
President Donald Trump, as the leader of our nation, has himself catered to this white nationalist movement, allowing it to make up the base of his support and providing it a false sense of legitimacy. He has allowed this dangerous movement of racism to gain momentum, and we believe this is allowing these extremist ideas to be held up as part of the mainstream, when they are not. *** He signed an executive order that halted all refugee admissions and barred people from seven Muslim-majority countries, called Puerto Ricans who criticized his administration's response to Hurricane Maria "politically motivated ingrates, " *** and called into question a federal judge, referring to the Indiana-born judge as "Mexican," when the race of his parents had nothing to do with the judge's decision.
You can read the two statements in full here. They appear on pages 42 and 43. The Bulletin apparently printed the advertisements without charge; the current rate for two full pages inside the magazine is $4,040.
Several Oregon lawyers complained to the Bar. The Bar refunded $1.15 to each of them, its estimate of the portion of their bar dues that went to publishing the April 2018 issue. In December 2018 they sued the Oregon State Bar and its leadership, alleging that the Bar violated their constitutional rights by publishing the advertisements at state expense. They alleged two distinct violations: a violation of their right to free speech, because the Bar (a state agency) was compelling them to pay to support political speech with which they disagreed, and a violation of their right to free association, because the state compelled them to join an organization that espoused views with which they disagreed. In May 2019 a United States district judge adopted the recommendation of a magistrate and dismissed their claims. The trial judge found that by refunding the $1.15, the state was no longer compelling the lawyers to pay to support political speech with which they disagreed (a similar procedure is used with compelled membership in labor unions). The judge also found that the Oregon State Bar was immune from suit on their free-association claim because the Bar was a state agency and, as an arm of the state, protected from suit by the Eleventh Amendment to the United States Constitution.
The lawyers appealed. This week the appellate panel unanimously reversed the trial court and sent the case back. The appellate panel agreed with the trial court on the free speech issue - $1.15 per complainant was enough to buy out their free-speech rights -- but reversed the trial court on the free-association issue. Quoting an earlier case, Keller v. State Bar of California, the court of appeals phrased the question this way: could the lawyers "be compelled to associate with an organization that engages in political or ideological activities beyond those for which mandatory financial support is justified?" The court then restated the question a little differently: does the First Amendment tolerate "mandatory membership itself - independent of compelled financial support - in an integrated bar that engages in nongermane political activities"? The court of appeals found that the precedents on which the trial court relied on did not apply to the facts of this case, and sent the case back for trial.
The kicker for the Oregon State Bar - and why its free advertising turned out to be expensive -- is that the court of appeals went on to say that the Bar, though a state agency for some purposes, is not protected by the Eleventh Amendment from being sued for damages in federal court. Unlike the typical state agency, the Bar writes its own budget, pays its own bills, owns its own property, and selects its own leaders. (Its website is not even a dot-gov site.) In the eyes of the court, even though state law establishes the Oregon State Bar as a mandatory association of lawyers, it is not sufficiently under the control of the state to be considered an "arm of the state." The Bar' s generous donation to the seven specialty bar associations of a page of free advertising has now cost that Bar and its board of governors their constitutional immunity from being sued for damages. Yes, the Bar could appeal -- to a Supreme Court that now includes conservative Justices Gorsuch, Kavanaugh, and Barrett. Good luck with that.
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