McDonald v. Longley ( 2021 )

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REVISED
United States Court of Appeals United States Court of Appeals
for the Fifth Circuit Fifth Circuit
FILED
July 2, 2021
Lyle W. Cayce
No. 20-50448
Clerk
Tony K. McDonald; Joshua B. Hammer; Mark S. Pulliam,
Plaintiffs—Appellants,
versus
Joe K. Longley, Immediate Past President of the State Bar of Texas;
Randall O. Sorrels, President of the State Bar of Texas;
Laura Gibson,
Member of the State Bar Board of Directors and Chair of the Board;
Jerry C. Alexander, Member of the State Bar Board of Directors;
Alison W. Colvin, Member of the State Bar Board of Directors,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
No. 1:19-CV-219
Before Smith, Willett, and Duncan, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Three Texas attorneys sued officers and directors of the State Bar of
Texas under 42 U.S.C. § 1983. They allege that the Bar is engaged in political
and ideological activities that are not germane to its interests in regulating the
legal profession and improving the quality of legal services and that therefore,
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compelling them to join the Bar and subsidize those activities violates their
First Amendment rights. We vacate in part, render in part, and remand.
I.
A.
State bar associations are of two types: (1) “mandatory” and (2) “vol-
untary.” Mandatory bars, also known as “integrated” bars, require that
attorneys join and pay compulsory dues “as a condition of practicing law in a
State.” Keller v. State Bar of Cal., 496 U.S. 1, 5 (1990). Voluntary bars do
not. See Jarchow v. State Bar of Wis., 140 S. Ct. 1720, 1720 (2020)
(Thomas, J., dissenting from denial of certiorari). Thirty-one states and the
District of Columbia have mandatory bars, while most of the others have
voluntary bars. 1
The State Bar of Texas is mandatory. See Tex. Gov’t Code
§ 81.051(b). All licensed Texas attorneys, more than 120,000 as of May
2019, must join the Bar, which “is a public corporation and an administrative
agency” controlled by the Supreme Court of Texas. Id. § 81.011(a), (c). The
Bar serves the following statutorily enumerated purposes:
(1) to aid the courts in carrying on and improving the ad-
ministration of justice;
(2) to advance the quality of legal services to the public and
to foster the role of the legal profession in serving the public;
(3) to foster and maintain on the part of those engaged in
1
See Ralph H. Brock, “An Aliquot Portion of Their Dues:” A Survey of Unified Bar
Compliance with Hudson and Keller, 1 Tex. Tech J. Tex. Admin. L. 23, 24 (2000);
Leslie C. Levin, The End of Mandatory State Bars, 109 Geo. L.J. Online 1, 2 (2020).
Most states have either a mandatory or voluntary bar, but California has switched to a
hybrid model in which core functions are performed by a mandatory state bar, while other
functions previously performed by its “sections” are now done by a separate voluntary bar
association. Cal. Bus. & Pro. Code §§ 6001, 6031.5(a), 6056.
2
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the practice of law high ideals and integrity, learning, compe-
tence in public service, and high standards of conduct;
(4) to provide proper professional services to the members
of the state bar;
(5) to encourage the formation of and activities of local bar
associations;
(6) to provide forums for the discussion of subjects pertain-
ing to the practice of law, the science of jurisprudence and law
reform, and the relationship of the state bar to the public; and
(7) to publish information relating to the subjects listed in
Subdivision (6).
Id. § 81.012.
In addition to being required to join the Bar, Texas attorneys are man-
dated to pay membership fees. 2 The Bar, which is entirely self-funded, relies
on membership fees for nearly half of its budget. 3 The Supreme Court of
Texas, in collaboration with the Bar, sets the membership fee schedule. See
id. § 81.054(a). The current annual dues for active attorneys range from $68
to $235, depending on how many years the attorney has been licensed. Those
on inactive status pay $50.
Texas law does not give the Bar carte blanche to spend the member-
ship fees however it pleases. The dues may “be used only for administering
the public purposes” outlined above. Id. § 81.054(d). The State Bar Act for-
bids the Bar from using funds to “influenc[e] the passage or defeat of any
legislative measure unless the measure relates to the regulation of the legal
2
Except for emeritus members. Id. § 81.054(b)
3
For the fiscal year ending in May 2018, those fees generated $23 million out of
the Bar’s approximately $51 million in revenue. The second most significant source of
revenue is from sales of continuing legal education (“CLE”) programs.
3
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profession, improving the quality of legal services, or the administration of
justice.” Id. § 81.034. And the Bar’s Policy Manual recognizes that “[t]he
expenditure of funds by the State Bar of Texas is limited . . . as set forth . . .
in Keller,” 4 a case that we discuss at length infra.
In addition to their required membership in the general Bar Associa-
tion, Texas attorneys have the option to join a number of subject-matter
“sections” that the Bar maintains. Those sections are funded in part by dues
paid by attorneys who voluntarily join them 5 and in part by money allocated
from the Bar’s general fund. 6
Finally, on top of the membership fees, Texas imposes a $65 “legal
services fee” on certain attorneys. 7 Those funds are collected by the Su-
preme Court of Texas and remitted to the Comptroller. Id. § 81.054(c).
They are allocated to pay for legal services for the indigent—half for civil
services and half for criminal defense. Id.
4
State Bar of Texas Board of Directors Policy Manual, State Bar of Texas
§ 3.14.01 (2018), https://www.texasbar.com/AM/Template.cfm?Section=Governing
_Documents1&Template=/CM/ContentDisplay.cfm&ContentID=42429 [hereinafter
Policy Manual].
5
See Sections, State Bar of Texas (last visited Apr. 21, 2021),
https://www.texasbar.com/Content/NavigationMenu/AboutUs/SectionsandDivisions/
SectionsandDivisions1/
6
See State Bar of Texas, 2019-2020 Proposed Combined Budget 2,
https://www.texasbar.com/AM/Template.cfm?Section=Meeting_Agendas_and_Minut
es&Template=/CM/ContentDisplay.cfm&ContentID=43829 (allocating funds from the
general fund to sections and volunteer committees).
7
Tex. Gov’t Code § 81.054(j). Exempt from the legal services fee are (1) inac-
tive and nonpracticing attorneys, (2) attorneys over seventy years old, (3) those who work
for the federal, state, or local governments, (4) § 501(c)(3) employees, and (5) out-of-state
lawyers who do not practice in Texas. Id. § 81.054(k).
4
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B.
In carrying out its statutorily enumerated purposes, the Bar under-
takes a plethora of initiatives. The plaintiffs object to a number of them,
alleging that they are “political and ideological activities that extend far be-
yond any regulatory functions.” We outline the objected-to activities here.
1.
The Bar has a legislative program, through which it lobbies for “bills
drafted by sections of the State Bar.” The Bar’s Policy Manual forbids the
Bar from taking a position on proposed legislation unless strict criteria are
met. See Policy Manual § 8.01.03. Among those criteria are that the proposed
legislation (1) “falls within the purposes, expressed or implied, of the State
Bar as provided in the State Bar Act,” (2) “does not carry the potential of
deep philosophical or emotional division among a substantial segment of the
membership of the bar,” (3) “is in the public interest,” and (4) “cannot be
construed to advocate political or ideological positions.” Policy Manual
§ 8.01.03(A), (C)–(D), (G).
In 2019, the Bar lobbied for forty-seven bills, on subjects ranging from
LGBT rights to trusts and estates, that it supposedly determined to have met
those criteria. Those measures included efforts to, among other things,
(1) amend the Texas Constitution’s definition of marriage (SJR 9); (2) create
civil unions “as an alternative to marriage” (HB 978); (3) alter the proce-
dures grandparents must use to obtain access to their grandchildren over
parental objections (HB 575); (4) substantively amend Texas trust law
(HB 2782); and (5) impose new notification requirements on parents who
wish to take summer weekend possession of a child under a court order
(HB 553).
The voluntary sections, as distinguished from the Bar as a whole, write
and lobby for the bills included in the legislative program. But the Bar, using
5
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mandatory dues, supports those efforts in a number of ways. First, the legis-
lative program must be approved by the Bar’s board, placing the entire Bar’s
imprimatur on it. Second, the voluntary sections are funded in part by the
Bar’s general fund. And third, the Bar funds a Government Relations
Department (“GRD”), which “manages and coordinates the State Bar’s
legislative program.” 8
2.
The record reflects that the Bar houses an Office of Minority Affairs
(“OMA”), whose goals include “serv[ing] minority, women, and LGBT
attorneys and legal organizations in Texas” and “enhanc[ing] employment
and economic opportunities . . . in the legal profession” for members of those
groups. OMA sponsors “ongoing forums, projects, programs, and
publications”—called “Minority Initiatives”—“dedicated to [its] diversity
efforts.” Though the programming is focused on furthering diversity relative
to certain groups, all Texas attorneys are encouraged to participate. All told,
the Bar spends about $500,000 per year on minority affairs.
3.
The Bar engages in, or financially supports, numerous activities aimed
at making legal services available to the needy. First, it spends more than $1
million annually to support its Legal Access Division (“LAD”), which
facilitates pro bono efforts in a wide variety of activities in the legal arena,
including immigration, veterans’ affairs, and landlord-tenant disputes. It
8
Governmental Relations, State Bar of Texas (Apr. 21, 2021),
https://www.texasbar.com/Content/NavigationMenu/AboutUs/GovernmentalRelation
s/default.htm. The GRD also “serves as the State Bar’s liaison to the Texas Legislature
and other state and federal governmental entities.” Id. In that capacity, it responds to
requests for information and assistance by the Texas Legislature and other entities, and
reviews thousands of bills each legislative session.
6
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“offers support, training, publications, resource materials, and more to legal
services programs and pro bono volunteers.”
Second, in support of its pro bono efforts, the Bar maintains a directory
of “volunteer and resource opportunities.” 9 The webpage appears to direct
lawyers to various resources depending on the Bar’s perceived needs of the
time. For example, as of April 2021, it directed lawyers to volunteering for
legal needs related to the COVID-19 pandemic (e.g. evictions, unemploy-
ment, and domestic problems). For a time in 2019, it directed lawyers to
organizations representing asylum-seekers and illegal aliens.
Third, the Bar funds the Texas Supreme Court’s Access to Justice
Commission (“AJC”), which “focuses on cutting-edge initiatives and pilot
projects that promote access to justice in Texas.” Among other things, it
aims to “increase resources and funding for access to justice,” “develop and
implement initiatives designed to expand civil access to justice,” and pro-
mote “systemic change.” One of its mechanisms for achieving those aims is
lobbying for “both funding and non-funding legislation.”
Finally, as mentioned above, the legal services fee, by statute, is used
to fund legal services for the indigent.
4.
The Bar also undertakes a number of miscellaneous activities to which
the plaintiffs object. It hosts an annual convention, which sponsors panels,
some of which the plaintiffs contend are ideologically charged. The Bar funds
continuing legal education (“CLE”) programs, some of which the plaintiffs
9
Volunteer and Resource Opportunities, State Bar of Texas,
https://www.texasbar.com/Content/NavigationMenu/LawyersGivingBack/Volunteer/d
efault.htm.
7
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aver are similarly charged. And the Bar funds the Texas Bar Journal.
C.
Recognizing that some members might object to various of its myriad
initiatives, the Bar provides ways for dissenting members to make their dis-
agreements known. Before the expenditure is approved, members can lodge
their objections to either the Bar’s Board of Directors or the appropriate
committee or section. See, e.g., Policy Manual §§ 8.01.03(B), 8.01.06(B),
8.01.08(B), 8.01.09(D). Members may also express disapproval at the Bar’s
annual public hearing on its proposed budget. Tex. Gov’t Code
§ 81.022(b)–(c). The ballot box provides another incidental check: Mem-
bers vote for the Bar’s officers and directors. See generally Policy Manual
§§ 1.03, 2.01.
The Bar also provides a mechanism for objecting members to obtain a
pro rata refund of their membership fee. Specifically, members may file a
written objection “to a proposed or actual expenditure . . . as not within the
purposes or limitations” set forth by the State Bar Act or by Supreme Court
precedent. Policy Manual §§ 3.14.01, 3.14.02. The protesting member may
“seek refund of a pro rata portion of his or her dues expended, plus interest,”
on the objectionable activity. Id. § 3.14.02. The Bar does not proactively
furnish members with a breakdown of their respective pro rata shares of fund-
ing the Bar’s chosen pursuits. Objections are reviewed by the Executive
Director, who “in consultation with the President, shall have the discretion
to resolve” it. Id. § 3.14.03. A refund is the only available remedy─an objec-
tor cannot prevent the Bar from otherwise pursuing the objected-to activity.
If a refund is issued, it is done so only “for the convenience of the Bar”: It
does not constitute an admission that the expense was improper. Id.
§ 3.14.04. If a refund is denied, the objector has no further administrative
recourse.
8
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The Bar requires notice of those procedures to be “published in con-
junction with any publication or description of the State Bar’s budget, legis-
lative program, performance measures, amicus briefs, and any other similar
policy positions adopted by the State Bar.” Id. § 3.14.05. Nevertheless, the
Bar has record of only one member—who is not among the plaintiffs and who
lodged the objection after the plaintiffs filed this lawsuit—using the proce-
dure since its adoption in 2005.
D.
The plaintiffs sued under 42 U.S.C. §§ 1983 and 1988 on three theo-
ries: (1) Compelling the plaintiffs “to join, associate with, and financially
support the State Bar as a precondition to engaging in their chosen profes-
sion” violates their “rights to free speech and association”; (2) in the alter-
native, if they can be compelled to join, requiring them to “subsidize political
and ideological activities that extend beyond the Bar’s core regulatory func-
tions” violates their right to free speech; and (3) related to both of those,
“[t]he Bar’s procedures for separating chargeable and non-chargeable
expenses are inadequate to protect” their First Amendment rights. The
plaintiffs moved for a preliminary injunction and partial summary judgment
on liability. 10
The Bar cross-moved for summary judgment. 11 It countered with
10
The plaintiffs moved only for partial summary judgment because the scope of
relief they planned to seek differed based on the district court’s holding on liability. We
address both the summary judgment on liability and the scope of the relief plaintiffs are
entitled to through a preliminary injunction; we do not have occasion to opine on the full
scope of relief to which they may be entitled.
11
The Bar also filed a motion to dismiss, asserting that the original named defen-
dants did not enforce the mandatory bar membership and legal services fee. In response,
the plaintiffs filed an amended complaint adding additional defendants to address those
concerns. The district court dismissed the Bar’s motion without prejudice, and the Bar
9
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three principal points. First, it contended that Supreme Court precedent—
specifically Keller and Lathrop v. Donohue, 367 U.S. 820 (1961) (plurality)—
forecloses the plaintiffs’ claim that being compelled to join the bar violates
the First Amendment. Second, the Bar asserted that the challenged expendi-
tures are constitutionally permissible as “necessarily or reasonably incurred
for the purpose of regulating the legal profession or improving the quality of
. . . legal service[s].” And third, the Bar maintained that its refund pro-
cedures are constitutionally adequate.
The district court denied the plaintiffs’ motions and granted summary
judgment to the Bar. The court held that Lathrop and Keller remain binding
in spite of Janus v. American Federation of State, County, & Municipal Em-
ployees, Council 31, 138 S. Ct. 2448 (2018), and that Lathrop and Keller fore-
close the plaintiffs’ contention that being forced to join the bar violates the
First Amendment. The court further determined that all of the challenged
Bar expenses passed constitutional muster under Keller, “because they fur-
ther[ed] Texas’s interest in professional regulation or legal-service quality
improvement.” Finally, the court rejected the plaintiffs’ challenge to the
refund procedures, concluding that they are constitutionally adequate. The
court entered a “take nothing” judgment, and the plaintiffs appeal.
II.
Because “[t]his court has a continuing obligation to assure itself of its
own jurisdiction” 12 before addressing the merits, we must determine wheth-
er the Tax Injunction Act (“TIA”) stripped the district court of jurisdiction.
Our review is de novo. Washington v. Linebarger, Goggan, Blair, Pena & Samp-
does not challenge the propriety of that dismissal on appeal.
12
United States v. Pedroza-Rocha, 933 F.3d 490, 493 (5th Cir. 2019) (per curiam),
cert. denied, 140 S. Ct. 2769 (2020).
10
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son, LLP, 338 F.3d 442, 444 (5th Cir. 2003).
The TIA provides that “district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any tax under State law where a
plain, speedy and efficient remedy may be had in the courts of such State.”
28 U.S.C. § 1341. 13 In other words, “the [TIA] is a broad jurisdictional
impediment to federal court interference with the administration of state tax
systems.” Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006,
1010 (5th Cir. 1998) (quotation marks omitted). The TIA does not, however,
impede federal courts’ review of regulatory fees. See id. Therefore, to deter-
mine our jurisdiction, we must decide whether the membership fee and the
legal services fee are taxes or, instead, whether they are fees.
“Whether a charge is a fee or a tax is a question of federal law.”
Neinast v. Texas, 217 F.3d 275, 278 (5th Cir. 2000). Although the label given
to a particular outlay “has no bearing on the resolution of the question,”
Home Builders, 143 F.3d at 1010 n.10, we may take notice of how an expense
is treated by the state’s courts, see Lipscomb v. Columbus Mun. Separate Sch.
Dist., 269 F.3d 494, 500 n.13 (5th Cir. 2001). Generally, “a broad construc-
tion of ‘tax’ is necessary to honor Congress’s goals in promulgating the
TIA.” Henderson v. Stalder, 407 F.3d 351, 356 (5th Cir. 2005).
“[T]he line between a ‘tax’ and a ‘fee’ can be a blurry one.” Home
Builders, 143 F.3d at 1011 (quotation marks omitted). Indeed, “the distinc-
tion between a tax and a fee is a spectrum with the paradigmatic fee at one
end and the paradigmatic tax at the other.” Washington, 338 F.3d at 444(quotation marks omitted). But we have enunciated some workable distinc-
13
Similarly, “[t]he Anti-Injunction Act, 26 U.S.C. § 7421(a), bars any ‘suit for the
purposes of restraining the assessment or collection of any tax.’” CIC Servs., LLC, v. IRS,
141 S. Ct. 1582, 1586 (2021).
11
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tions. First, “the classic tax sustains the essential flow of revenue to the gov-
ernment, while the classic fee is linked to some regulatory scheme.” Home
Builders, 143 F.3d at 1011. Second, “[t]he classic tax is imposed by a state or
municipal legislature, while the classic fee is imposed by an agency upon
those it regulates.” Id. And third, “[t]he classic tax is designed to provide a
benefit for the entire community, while the classic fee is designed to raise
money to help defray an agency’s regulatory expenses.” Id.
The membership fees are “classic fees.” First, they are linked to the
regulation of the legal profession, not to generating revenue for the govern-
ment. Texas law requires that Bar funds “be used only for administering the
public purposes provided by” the State Bar Act. Tex. Gov’t Code
§ 81.054(d). In fact, the Supreme Court of Texas must distribute the fees to
the Bar only for funding expenditures to pursue those ends. See id.
§ 81.054(c). Second, the membership fees are imposed neither by a legisla-
ture nor on the entire community. Although a statute authorizes charging
the fees, the process of setting and collecting those fees is left to the Texas
Supreme Court and the Bar. See id. §§ 81.022, 81.054(a), (c). Furthermore,
the dues are paid only by those regulated by the Bar—licensed Texas
attorneys—“not the public at large,” indicating they are a fee. Neinast,
217 F.3d at 278. Third and finally, the membership fees defray the Bar’s
costs. The Bar is entirely self-funded, and the mandatory dues amount to
nearly half of its annual revenue.
The legal services fee is also a fee, albeit a less paradigmatic one. Like
the membership fee, the legal services fee is imposed only on the legal pro-
fession, “not the public at large.” Id. And the fee is linked to the regulation
of the legal profession, given that its purpose is to ensure adequate funding
of “basic civil legal services to the indigent and legal representation and other
defense services to indigent defendants in criminal cases.” Tex. Gov’t
Code § 81.054(d). In other words, its purpose is not to raise revenue but to
12
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ensure that members of the legal profession are able to provide a particular
legal service. On the other hand, unlike the membership fee, the legal
services fee is imposed directly by the legislature. Compare id. § 81.054(a),
with id. § 81.054(j). But that does not outweigh the other factors.
Since neither the membership fee nor the legal services fee is a tax, the
TIA does not deprive the federal courts of jurisdiction. We therefore turn to
the merits.
III.
We first analyze the plaintiffs’ claim that compelling them to join the
Bar violates the First Amendment. The Supreme Court has twice opined on
whether mandatory bars violate the First Amendment. We discuss those
cases, Lathrop v. Donohue, 367 U.S. 820 (1961) (plurality), and Keller v. State
Bar of California, 496 U.S. 1 (1990), to determine whether the plaintiffs’
claim survives. 14
14
Since Lathrop and Keller were decided, the Supreme Court’s First Amendment
caselaw has changed dramatically. Both cases drew from the then-existing jurisprudence
on the First Amendment implications of mandatory union dues, but that jurisprudence has
evolved. Keller, in particular, rested almost exclusively on Abood v. Detroit Board of Edu-
cation, 431 U.S. 209 (1977), which the Court overruled in Janus, 138 S. Ct. at 2486. Those
changes, and Janus in particular, cast doubt on Lathrop and Keller. See Jarchow, 140 S. Ct.
at 1720 (Thomas, J., dissenting from denial of certiorari). Contra Janus, 138 S. Ct. at 2498(Kagan, J., dissenting) (contending that Janus did not call Keller into question).
But “the Supreme Court abrogates its cases with a bang, not a whimper, and it has
never revisited” either Lathrop or Keller. Tex. Democratic Party v. Abbott, 961 F.3d 389, 405
(5th Cir. 2020). So, despite their “increasingly wobbly, moth-eaten foundations,” State
Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (cleaned up), Lathrop and Keller remain binding.
Because they have “direct application in [this] case,” we apply them, “leaving to [the
Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). With that said, Lathrop’s and Keller’s
weakened foundations counsel against expanding their reach as we consider questions they
left open.
13
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In Lathrop, 367 U.S. at 827–28, the Court considered whether manda-
tory bar membership necessarily violates the right to freedom of association.
The Wisconsin Bar, the Lathrop plaintiff alleged, “express[es] . . . opinion[s]
on legislative matters” and “utilizes its property, funds and employees for
the purposes of influencing legislation and public opinion toward legis-
lation.” Id. at 827. Therefore, he contended “that he [could not] constitu-
tionally be compelled to join and give support to” the Bar. Id.The Court rejected the plaintiff’s claim for two reasons. First, it noted
that the plaintiff’s “compulsory enrollment imposes only the duty to pay
dues”; his involuntary membership did not require any other participation.
Id. at 827–28. Second, the Court found that the bar’s activities at issue were
almost entirely limited to “elevating the educational and ethical standards of
the Bar to the end of improving the quality of the legal service available to the
people of the State” Id. at 843. Though that bar was engaged in legislative
activity, that activity was “not the major activity of the State Bar,” id. at 839,and, furthermore, it was limited to bills pertinent to the legal profession for
which there was “substantial unanimity,” id. at 834–38.
After deciding that compelling the plaintiff to pay dues to such a bar
association did not violate the freedom of association, the Lathrop Court, not-
ing the paucity of the record, declined to decide whether “the use of his
money for causes which he opposes” violated his right to free speech. Id.
at 845. Three decades later, Keller reached that issue.
Like the Lathrop plaintiff, the Keller plaintiffs claimed that compelling
their financial support of political activities violated their rights to freedom
of speech and freedom of association. Keller, 496 U.S. at 5–6. The Court
held that state bar associations may constitutionally charge mandatory dues
to “fund activities germane” to “the purpose[s] for which compelled associ-
ation was justified,” i.e., “regulating the legal profession and improving the
14
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quality of legal services.” Id. at 13–14. But state bar associations cannot con-
stitutionally use mandatory dues to “fund activities of an ideological nature
which fall outside of those areas of activity.” Id. at 14. Although it held that
at least some complained-of activities were germane, the Court remanded for
the lower courts to determine exactly which of the challenged activities were
non-germane. 15
After deciding the free speech issue, the Court turned briefly to free-
dom of association. The Keller plaintiffs contended that “they cannot be
compelled to associate with an organization that engages in political or ideo-
logical activities beyond those for which mandatory financial support is justi-
fied under the principles of Lathrop and Abood [v. Detroit Board of Education,
431 U.S. 209 (1977)].” Id. Despite noting that the plaintiffs’ claim “appears
to implicate a much broader freedom of association claim than was at issue in
Lathrop,” id. at 17, the Court did not resolve that broader claim, see id.So where do Lathrop and Keller leave us? Lathrop held that lawyers
may constitutionally be mandated to join a bar association that solely regu-
lates the legal profession and improves the quality of legal services. Keller
identified that Lathrop did not decide whether lawyers may be constitu-
tionally mandated to join a bar association that engages in other, non-
germane activities. Nor did Keller resolve that question. 16 Therefore, we
15
See Keller, 496 U.S. at 15–16 (noting that “[c]ompulsory dues may not be
expended to endorse or advance a gun control or nuclear weapons freeze initiative,” both
of which the plaintiffs asserted the state bar did).
16
We join the Ninth and Tenth Circuits in reading Lathrop and Keller as leaving
that question unresolved. See Schell v. The Chief Justice & Justices of the Oklahoma Supreme
Court, No. 20-6044, 2021 WL 2657106, at *11 (10th Cir. June 29, 2021); Crowe v. Or. State
Bar, 989 F.3d 714, 727–29 (9th Cir. 2021), petition for cert. filed (May 27, 2021)
(No. 20-1678).”
15
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must both decide that issue and determine whether the Texas Bar is engaged
in non-germane activities.
A.
To determine whether compelling the plaintiffs to join a bar that
engages in non-germane activities violates their freedom of association, we
must decide (1) whether compelling the plaintiffs to join burdens their rights
and, (2) if so, whether it is nevertheless justified by a sufficient state interest.
1.
“[F]reedom of association is never mentioned in the United States
Constitution.” 17 Instead, it is implicit in the other rights listed in the First
Amendment. See Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). As rele-
vant here, “[a]n individual’s freedom to speak . . . could not be vigorously
protected from interference by the State unless a correlative freedom to
engage in group effort toward those ends were not also guaranteed.” 18 Be-
cause the right to freedom of association is part of the freedom of speech,
“[t]o determine whether a group is protected by the First Amendment’s ex-
pressive associational right, we must determine whether the group engages
in ‘expressive association.’” Boy Scouts of Am. v. Dale, 530 U.S. 640, 648
(2000).
For groups that engage in expressive association, the “[f]reedom of
association . . . plainly presupposes a freedom not to associate.” Roberts,
468 U.S. at 623. Those groups have a right to restrict their membership,
17
Amy Gutmann, Freedom of Association: An Introductory Essay, in Freedom of
Ass’n 3, 9 (Amy Guttman ed. 1998); see U.S. Const. amend. I.
18
Roberts, 468 U.S. at 622; see also NAACP v. Alabama ex rel. Patterson, 357 U.S.
449, 460 (1958) (“Effective advocacy of both public and private points of view, particularly
controversial ones, is undeniably enhanced by group association . . . .”).
16
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No. 20-50448
because the membership is the message. 19 Individuals have an analogous
right to “eschew association for expressive purposes.” Janus, 138 S. Ct.
at 2463. That right is part and parcel of the “cardinal constitutional com-
mand” that the government may not compel “individuals to mouth support
for views they find objectionable.” Id. 20Based on that, compelling a lawyer to join a bar association engaged in
non-germane activities burdens his or her First Amendment right to freedom
of association. Such a bar association would invariably be engaged in expres-
sive activities. Even bar associations that engage in only germane activities
undertake some expressive activities; for example, proposing an ethical rule
expresses a view that the rule is a good one, and commenting on potential
changes to the state’s court system, as the bar in Lathrop did, expresses a view
that such a reform is a good or bad idea.
Bar associations that also engage in non-germane activities will almost
certainly be engaging in additional expressive activities that “support . . . a
particular conception of the good life or controversial ideology of the good
society.” Id. And, when a bar association does so, part of its expressive mes-
sage is that its members stand behind its expression. The membership is part
of the message. Compelling membership, therefore, compels support of that
message. If a member disagrees with that “conception of the good life or
controversial ideology,” then compelling his or her membership infringes on
19
See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the L. v.
Martinez, 561 U.S. 661, 680 (2010) (“Who speaks . . . colors what concept is conveyed.”).
20
“When membership of an association requires the individual to give support to
a particular conception of the good life or controversial ideology of the good society, the
freedom to refuse association is clearly fundamental to the individual’s freedom to live
authentically in accordance with his/her own ethical and political beliefs.” Stuart White,
Trade Unionism in a Liberal State, in Freedom of Ass’n, supra, at 330, 345.
17
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No. 20-50448
the freedom of association. Id.
2.
But that does not necessarily mean the plaintiffs are entitled to relief.
“The right to associate for expressive purposes is not . . . absolute.” Roberts,
468 U.S. at 623. In its freedom-of-association cases, the Court has generally
applied “exacting . . . scrutiny,” under which “mandatory associations are
permissible only when they serve a ‘compelling state interest that cannot be
achieved through means significantly less restrictive of associational free-
doms.’” Knox v. Serv. Emps. Intl Union, Loc. 1000, 567 U.S. 298, 310 (2012)
(quoting Roberts, 468 U.S. at 623).
Compelled membership in a bar association that is engaged in only
germane activities survives that scrutiny. We know that both because
Lathrop held that compelled membership in such a bar did not violate free-
dom of association and because of the more recent statement in Harris v.
Quinn, 573 U.S. 616, 655–56 (2014): States “have a strong interest in allo-
cating to the members of the bar, rather than the general public, the expense
of ensuring that attorneys adhere to ethical practices” as well as of regulating
the legal protection and improving the quality of legal services. Id. And, for
that reason, Keller, which allowed compelled subsidization 21 of germane
activities, “fits comfortably within the [exacting scrutiny] framework.” Id.
at 655.
Compelled membership in a bar association that engages in non-
germane activities, on the other hand, fails exacting scrutiny. Knox v. Serv.
Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 310 (2012) (quoting Roberts,
21
Exacting scrutiny is applied to both freedom-of-association and compelled-
subsidy claims. See, e.g., Janus, 138 S. Ct. at 2465 (compelled subsidy); Dale, 530 U.S.
at 648 (freedom of association).
18
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No. 20-50448
468 U.S. at 623). Plaintiffs suggest that, instead of exacting scrutiny, strict
scrutiny should apply. Under that standard, the government must show that
its action is “narrowly tailored” to “further compelling governmental inter-
ests.” Johnson v. California, 543 U.S. 499, 505 (2005) (cleaned up). Because
the bar’s mandatory membership “cannot survive under even the more
permissive standard,” we do not decide whether strict scrutiny is necessary.
See Janus, 138 S. Ct. at 2465. Although states have interests in allocating the
expenses of regulating the legal profession and improving the quality of legal
services to licensed attorneys, they do not have a compelling interest in
having all licensed attorneys engage as a group in other, non-germane
activities.
Moreover, there are other “means significantly less restrictive of asso-
ciational freedoms” to achieve the state’s legitimate interests. Knox,
567 U.S. at 310. Almost twenty states—including some of the largest legal
markets, such as New York, Illinois, and Pennsylvania—directly regulate the
licensing and disciplining of attorneys. See Brock, supra, at 24 n.1 (not listing
those states as having mandatory bars).
The Bar cannot reasonably suggest that those states are unable to reg-
ulate their legal professions adequately. Nor does the Bar have to cede its
ability to engage in non-germane activities entirely—as California has shown,
a hybrid model is possible.
Therefore, the plaintiffs are entitled to summary judgment on their
freedom-of-association claim if the Bar is in fact engaged in non-germane
activities.
B.
The purposes justifying compelled association in a bar association are
“regulating the legal profession” and “improving the quality of legal ser-
vices.” Keller, 496 U.S. at 13. For activities to be germane, they must be
19
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No. 20-50448
“necessarily or reasonably incurred for” those purposes. Id. at 14. The
plaintiffs contend that all “activities of a ‘political or ideological’ nature”
necessarily are non-germane. That misses the mark.
Keller said mandatory dues cannot be used to “fund activities of an
ideological nature which fall outside of those areas of activity.” Id. (emphasis
added). Though later decisions have framed Keller somewhat as these
plaintiffs do, 22 none of them purported to alter Keller’s standard, which
contemplates that some political or ideological activities might be germane.
With that in mind, we turn to “[t]he difficult question” of determining
whether each respective challenged activity is germane. Id.
1.
The Bar’s legislative program is neither entirely germane nor wholly
non-germane. The plaintiffs advocate a bright line rule that any legislative
lobbying is non-germane. But such a rule is foreclosed by Lathrop and Keller.
In Lathrop, 367 U.S. at 836–37, the Court identified no First Amendment vio-
lation despite the Wisconsin bar’s lobbying for various pieces of legislation
regarding the state court system, attorney compensation, and other matters
related to the legal profession. And Keller, 496 U.S. at 15, highlighted that
lobbying is germane where “officials and members of the Bar are acting
essentially as professional advisers to those ultimately charged with the regu-
22
See, e.g., Harris, 573 U.S. at 655 (describing Keller as holding “that members of
this bar could not be required to pay the portion of bar dues used for political or ideological
purposes but that they could be required to pay the portion of the dues used for activities
connected with proposing ethical codes and disciplining bar members”); Johanns v. Live-
stock Mktg. Ass’n, 544 U.S. 550, 558 (2005) (“[W]e have invalidated the use of the com-
pulsory fees to fund speech on political matters.” (citing Keller)); Bd. of Regents of Univ. of
Wis. Sys. v. Southworth, 529 U.S. 217, 231 (2000) (“[L]awyers could not, however, be
required to fund the bar association’s own political expression.” (citing Keller, 496 U.S.
at 16)).
20
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No. 20-50448
lation of the legal profession.” At the same time, the scope of the Bar’s legis-
lative program belies its contention that every single bill it has lobbied for is
germane to regulating the legal profession or improving the quality of legal
services.
Keller did not lay down a test to determine when lobbying is germane
and when it is not, acknowledging that the dividing line would “not always
be easy to discern.” Id. at 16. Instead, it identified “advanc[ing] a gun con-
trol or nuclear weapons freeze initiative” and “proposing ethical codes” as
the bookends of the spectrum and left it to lower courts to work out inter-
mediate cases. We must do so now.
Except as stated below, advocating changes to a state’s substantive
law is non-germane to the purposes identified in Keller. Such lobbying has
nothing to do with regulating the legal profession or improving the quality of
legal services. Instead, those efforts are directed entirely at changing the law
governing cases, disputes, or transactions in which attorneys might be involved.
Lobbying for legislation regarding the functioning of the state’s courts or
legal system writ large, on the other hand, is germane. So too is advocating
for laws governing the activities of lawyers qua lawyers. 23
23
Lathrop’s description of the topics on which the Wisconsin Bar took positions is
illustrative of the type of lobbying that is germane:
The State Bar, through its Board of Governors or Executive Commit-
tee, has taken a formal position with respect to a number of questions of
legislative policy. These have included such subjects as an increase in the
salaries of State Supreme Court justices; making attorneys notaries public;
amending the Federal Career Compensation Act to apply to attorneys
employed with the Armed Forces the same provisions for special pay and
promotion available to members of other professions; improving pay scales
of attorneys in state service; court reorganization; extending personal
jurisdiction over nonresidents; allowing the recording of unwitnessed con-
21
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No. 20-50448
Applied to the Bar’s 2019 legislative program, for example, that means
that some lobbying was germane, but most was not. Many of the bills the Bar
supported relate to substantive Texas law and are wholly disconnected from
the Texas court system or the law governing lawyers’ activities. For exam-
ple, the Bar’s lobbying to amend the Texas Constitution’s definition of mar-
riage and create civil unions is obviously non-germane. 24 The Bar’s presum-
ably less-controversial proposed substantive changes to Texas family law are
equally non-germane. The Bar’s lobbying for the “creation of an exemption
regarding the appointment of pro bono volunteers,” on the other hand, is ger-
mane, because it relates to the law governing lawyers. Its lobbying for
changes to Texas trust law is germane to the extent the changes affect law-
yers’ duties when serving as trustees, and non-germane to the extent the
changes do not.
veyances; use of deceased partners’ names in firm names; revision of the
law governing federal tax liens; law clerks for State Supreme Court jus-
tices; curtesy and dower; securities transfers by fiduciaries; jurisdiction of
county courts over the administration of inter vivos trusts; special appro-
priations for research for the State Legislative Council.
Lathrop, 367 U.S. at 836–37 (citations omitted). Those positions, with the possible excep-
tions of “curtesy and dower,” “extending personal jurisdiction over nonresidents,” and
“federal tax liens,” all relate to the state’s court system or the activities of lawyers. That
type of lobbying is germane.
In addition to its formally taken positions, the Wisconsin bar set up a group to
address federal legislation affecting “the practice of law, or lawyers as a class, or the juris-
diction, procedure and practice of the Federal courts and other Federal tribunals, or crea-
tion of new Federal courts or judgeships affecting this state, and comparable subjects.” Id.
at 838. Announcing positions on those topics would also pass the germaneness test.
24
The Bar contends that its lobbying was germane because “seeking to amend or
repeal unconstitutional laws benefits the legal profession and improves the quality of legal
services because it reduces the risk that lawyers, their clients, members of the public, or
government officials will rely on laws that judicial decisions have rendered invalid.” But
Keller does not afford the Bar a roving commission to advocate for legislation to “amend or
repeal unconstitutional laws” or “clean up legal texts.”
22
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No. 20-50448
What is important, however, is that some of the legislative program is
non-germane. The Bar attempts to salvage the program by maintaining that
only its voluntary sections engage in lobbying and that therefore plaintiffs are
not compelled to associate with those initiatives. But, by the Bar’s own
admission, “[n]o voluntary section may assert a position regarding legisla-
tive, judicial, or executive action unless it has first obtained permission” from
the Bar’s Board of Directors. See Policy Manual § 8.01.06. Those positions
have the imprimatur of the entire Bar.
Moreover, even if the subject-matter sections undertake the direct-
lobbying expenses, the Bar still uses mandatory dues to fund those sections
directly and to pay for the GRD, which reviews the sections’ proposals. That
too ties the entire Bar to the program. In sum, some of the legislative program
is non-germane, so compelling the plaintiffs to join an association engaging
in it violates their freedom of association.
2.
The Bar’s various diversity initiatives through OMA, though highly
ideologically charged, are germane to the purposes identified in Keller. The
plaintiffs contend that OMA’s diversity initiatives are “highly ideological,”
because they support the approach of “having programs targeted at certain
individuals based on their race, gender, or sexual orientation” and “people
of good faith . . . disagree sharply about the merits of such programs.” The
plaintiffs are certainly right on that point—affirmative action and other
identity-based programs, in contexts ranging from contract bidding to higher
education, have spawned sharply divided public debate and widespread, con-
tentious litigation. 25 Legislation has been introduced in Congress to address
25
See, e.g., Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant
Rights & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291 (2014); Parents
23
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No. 20-50448
a number of race-based issues, 26 and litigation remains pending challenging
several diversity-justified initiatives. 27 In other words, that issue is a “sensi-
tive political topic[ ]” that is “undoubtedly [a] matter[] of profound value
and concern to the public.” Janus, 138 S. Ct. at 2476 (cleaned up).
But, despite the controversial and ideological nature of those diversity
initiatives, they are germane to the purposes identified by Keller. They are
aimed at “creating a fair and equal legal profession for minority, women, and
LGBT attorneys,” which is a form of regulating the legal profession. And
the Bar contends that those initiatives “help to build and maintain the pub-
lic’s trust in the legal profession and the judicial process as a whole,” which
is an improvement in the quality of legal services.
The germaneness test does not require that there be unanimity on the
Bar’s position on what best regulates the legal profession—that is typically
for the Bar to decide. 28 To take a non-controversial example, the Bar’s advo-
cating a particular ethical rule is germane no matter how strenuously an attor-
Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Grutter v. Bollinger,
539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003); Adarand Constructors, Inc. v.
Pena, 515 U.S. 200 (1995).
26
See, e.g., Commission to Study and Develop Reparation Proposals for African-
Americans Act, H.R. 40, 116th Cong. (2019); Commission to Study and Develop Repara-
tion Proposals for African-Americans Act, S. 1083, 116th Cong. (2019); George Floyd
Justice in Policing Act of 2020, H.R. 7120, 116th Cong. (2020).
27
See, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,
980 F.3d 157 (1st Cir. 2020), petition for cert. filed (Feb. 25, 2021) (No. 20-1199).
28
But there are limits. Certain ideologically charged activities might be so tenu-
ously related to the legal profession that any argument they are germane would be pre-
textual. In holding that the diversity initiatives are germane, we do not give the Bar carte
blanche to engage in any ideological activities so long as they have some sophistic argument
the activities are germane. We just identify that the diversity initiatives are not so tenuously
connected to the purposes identified in Keller, and that therefore their ideologically charged
nature does not defeat their germaneness.
24
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No. 20-50448
ney might disagree with its propriety. The same principle applies here. In
sum, the diversity initiatives are “activities of an ideological nature which fall
[in]side” the areas identified by Keller, 496 U.S. at 14. Given that those
activities are germane under Keller, they are not a basis for granting summary
judgment for the plaintiffs. 29
3.
Most, but not quite all, of the Bar’s activities aimed at aiding the needy
are germane. Specifically, (1) the LAD, (2) the Bar’s directory of volunteer
and resource opportunities, and (3) the legal services fee solely support pro
bono work. That is germane to both regulating the legal profession and im-
proving the quality of legal services. Legal aid and pro bono programs focus
on providing legal counsel to millions of Texans who cannot afford it and
would otherwise be forced to proceed pro se. This improves the quality of
legal services available to low-income Texans, given that they would other-
wise have no legal services at all.
Such initiatives also aid Texas courts, because decreasing the number
of pro se litigants reduces the administrative burdens those litigants place on
Texas courts. Moreover, legal aid and pro bono efforts help lawyers to “fulfill
[their] ethical responsibility to provide public interest legal service.” 30 The
Supreme Court has suggested that funding legal aid and encouraging pro bono
29
We doubt it would be constitutionally permissible, under Janus, to compel the
plaintiffs to join an association taking the Bar’s stances on those ideologically charged
issues. But Keller binds us as the caselaw that is most directly applicable.
30
Tex. Disciplinary R. Pro. Conduct 6.01 cmt. 5; see also id. preamble
¶ 6 (“A lawyer should render public interest legal service. . . . The provision of free legal
services to those unable to pay reasonable fees is a moral obligation of each lawyer . . . .”);
Tex. State Bar Bd. of Dirs., Pro Bono Resolution (2000) (“[E]ach Texas
attorney should aspire to render at least 50 hours of legal services to the poor each year
. . . .”).
25
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No. 20-50448
service are permissible ends for a mandatory bar to pursue, 31 and our sister
circuits appear to agree. 32
The plaintiffs’ main complaint with those programs seems to be that
they disagree with the Bar’s choice of legal aid organizations to support, par-
ticularly in the context of immigration. Specifically, they contend that facili-
tating representation of aliens “is itself a highly ‘substantive’ and ‘ideological
activity’” that “squarely aligns the Bar with one view of a politically charged
national debate.” But a “lawyer’s representation of a client . . . does not
constitute an endorsement of the client’s political, economic, social or moral
views or activities.” 33 It follows that there is no reason to believe that facili-
tating lawyers’ representation of aliens in navigating immigration laws consti-
tutes an endorsement of any particular viewpoint about those statutes. And
structurally, in cases where the federal government is a party, it is unsurpris-
ing that only one side of that “v” needs pro bono assistance.
In any event, LAD’s directory merely provides information for attor-
neys interested in such matters to connect with related organizations, and
LAD provides pro bono support for groups touching on a wide array of legal
31
See Lathrop, 367 U.S. at 840–43 (observing most of the Wisconsin Bar’s political
activities, which included support for legal aid, “serve the function . . . of elevating the
educational and ethical standards of the Bar to the end of improving the quality of the legal
service available to the people of the State”).
32
See, e.g., Schneider v. Colegio de Abogados de P.R., 917 F.2d 620, 626, 631 (1st Cir.
1990) (endorsing mandatory dues to support “legal aid services”); Levine v. Heffernan, 864
F.2d 457, 462 & n.4 (7th Cir. 1988) (noting that Lathrop indicated that “helping [to]
establish legal aid systems” was an “important activit[y] that the bar engaged in”); Gibson
v. Fla. Bar (Gibson I), 798 F.2d 1564, 1569 n.4 (11th Cir. 1986) (“Acceptable areas for Bar
lobbying would include . . . budget appropriations for the judiciary and legal aid . . . .”).
33
Tex. Disciplinary R. Pro. Conduct 6.01 cmt.4. If it did, no attorney
would want to represent an accused murderer or child molester.
26
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No. 20-50448
disciplines. 34 The plaintiffs do not allege, and the record does not support,
that LAD reserves those resources only for low-income Texans with certain
political views or those who are pursuing certain ideological causes.
AJC is more complicated, because unlike LAD, the resources page,
and the legal services fee, AJC’s activities are not entirely cabined to making
legal representation more available to low-income Texans. To be sure, most
of its activities are so directed, 35 and to the extent the Bar is supporting AJC
activities limited to helping low-income Texans access legal services, it is
germane. But some of AJC’s activities include lobbying for changes to Texas
substantive law designed to benefit low-income Texans. 36 Those may be sal-
utary activities. But they are aimed at making substantive Texas law more
favorable to low-income Texans, not at “regulating the legal profession” or
“improving the quality of legal services,” so they are non-germane under
Keller. Therefore, the Bar’s funding of the AJC is non-germane.
4.
The miscellaneous activities—hosting an annual convention, running
CLE programs, and publishing the Texas Bar Journal—are all germane. We
34
For example, LAD also provides resources for pro bono organizations seeking to
assist Texas veterans, help with tax issues, support criminal defense, or address improper
conduct by attorneys.
35
For example, the AJC lobbying for funding for civil legal services, creating pro
bono opportunities for law students, and providing training for attorneys are all merely
supporting pro bono work. And its efforts to help the Supreme Court of Texas make Texas
courts more assessable and navigable to low-income Texans, and creating “pro se forms
and toolkits” improve the quality of legal services.
36
For example, AJC “supported two enacted bills that made it easier for people to
pass their money and their home outside probate,” supported amending the Texas Prop-
erty Code to “limit dissemination of eviction information,” and supported regulations of
“wrap-around loans.”
27
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No. 20-50448
explain why.
The Bar’s annual convention and CLE offerings help regulate the
legal profession and improve the quality of legal services. Both programs
assist attorneys in fulfilling requirements designed to ensure that they main-
tain the requisite knowledge to be competent practitioners. See, e.g., Tex.
Disciplinary R. Pro. Conduct 1.01 cmt. 8. The plaintiffs’ com-
plaint is that some of the convention panels and CLE courses are ideologically
charged. Probably so. But that is not the test under Keller. And moreover,
any objectionable CLE and annual convention offerings are only one part of
a large, varied catalogue, and the Bar includes disclaimers indicating that it is
not endorsing any of the views expressed. That is enough to satisfy Keller. 37
The Texas Bar Journal publishes information related to regulating the
profession and improving legal services. Such information includes, among
other things, (1) notices regarding disciplinary proceedings against Bar mem-
bers, see Tex. R. Disciplinary P. 6.07; (2) announcements of amend-
ments to evidentiary and procedural rules, see Tex. Gov’t Code
§ 22.108(c); id. § 22.109(c); (3) “public statements, sanctions, and orders”
issued by the State Commission on Judicial Conduct, see id. § 33.005(e); and
(4) articles “devoted to legal matters and the affairs of the [Texas] Bar and
its members,” Tex. State Bar R. art. IX. Moreover, the Journal pur-
ports to feature articles advancing various viewpoints, and, in any event,
includes a disclaimer clarifying that the Bar does not endorse any views
expressed therein. That structure suffices under Keller. 38
37
See, e.g., Schneider, 917 F.2d at 626, 631 (endorsing “continuing legal education
programs” as a permissible activity to fund with mandatory bar dues).
38
The plaintiffs also reference, in a single sentence, the Bar’s spending on adver-
tising. Beyond that, however, they do not explain how it is unlawful, under Keller, to
28
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No. 20-50448
* * * * *
In sum, the Bar is engaged in non-germane activities, so compelling
the plaintiffs to join it violates their First Amendment rights. There are
multiple other constitutional options: The Bar can cease engaging in non-
germane activities; Texas can directly regulate the legal profession and create
a voluntary bar association, like New York’s; or Texas can adopt a hybrid
system, like California’s. But it may not continue mandating membership in
the Bar as currently structured or engaging in its current activities.
IV.
Assuming, arguendo, that the plaintiffs can be required to join the Bar,
compelling them to subsidize the Bar’s non-germane activities violates their
freedom of speech. 39 Given that the Bar is engaged in non-germane activities
and that its interests fail exacting scrutiny, 40 that is a straightforward applica-
tion of Keller. The Bar may “constitutionally fund activities germane to [reg-
ulating the legal profession or improving the quality of legal services] out of
the mandatory dues of all members. It may not, however, in such manner
fund activities of an ideological nature which fall outside of those areas of
activity.” Keller, 496 U.S. at 14. As explained above, parts of the legislative
program and the support for AJC are non-germane, so compelling plaintiffs
to fund them violates their freedom of speech. They are entitled to summary
compel them to support those efforts. “It is not enough to merely mention or allude to a
legal theory”: “[A] party must ‘press’ its claims,” which means, at a minimum, “clearly
identifying a theory as a proposed basis for deciding the case.” United States v. Scroggins,
599 F.3d 433, 446–47 (5th Cir. 2010). Because the plaintiffs have not met that threshold,
they have forfeited any contention related to the advertising expenditures.
39
“This alternative holding is not dicta. In this circuit, ‘alternative holdings are
binding precedent and not obiter dicta.’” Ramos-Portillo v. Barr, 919 F.3d 955, 962 n.5 (5th
Cir. 2019) (quoting Whitaker v. Collier, 862 F.3d 490, 496 n.14 (5th Cir. 2017)).
40
See Part III.C, supra.
29
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No. 20-50448
judgment on their second claim.
V.
The plaintiffs maintain that the Bar’s procedures for separating
chargeable from non-chargeable expenses is constitutionally inadequate. 41
They are, but not for the primary reason the plaintiffs offer.
The plaintiffs contend the Bar’s procedures, outlined in Part I.C,
supra, are constitutionally inadequate in light of recent precedent requiring
clear, free, and affirmative consent—i.e., an opt-in system 42—“before an
association can use an individual’s coerced fees or dues to support its political
and ideological activities.” The plaintiffs assert in the alternative that, even
if the Bar may use an opt-out refund procedure, its current procedures are
still inadequate because the Bar (1) requires members to pay dues before
seeking any refund, (2) does not provide adequate notice of its spending as
required by Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson,
475 U.S. 292 (1986), and (3) makes refunds available only at the Bar’s
discretion.
The Bar counters that “nothing in Keller mandates that integrated
bars adopt the exact procedures Hudson outlined,” let alone that mandatory
bars use an opt-in system. The Bar avers that its current procedures are con-
stitutional under Keller because “the Bar provides members with advance,
41
Even if the plaintiffs cannot be compelled to join the Bar because that violates
their freedom of association, the adequacy of the Bar’s procedures is still relevant. As we
clarify today in No. 20-30086, Boudreaux v. Louisiana State Bar Association, the inability to
identify non-germane expenses is itself a constitutional injury, entitling the plaintiffs to
relief. Moreover, because the plaintiffs can be compelled to join the Bar if it ceases its non-
germane activities, per Lathrop, ensuring the Bar has adequate procedures to notify the
plaintiffs, and others, that some activities might be non-germane is important.
42
See Janus, 138 S. Ct. at 2486; Knox, 567 U.S. at 322.
30
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detailed notice of its proposed expenditures, along with several opportunities
to object to those expenditures before they occur.” Specifically, the Bar
points to (1) the publication of its proposed budget, which itemizes expendi-
tures for particular categories, in the Texas Bar Journal; (2) opportunities to
object at the budget hearing and the annual Bar Board meeting related to the
budget; and (3) the protest procedure, which allows members to object to
both proposed and actual expenditures and obtain a refund.
Each side is half right. The plaintiffs are correct that the Bar’s proce-
dures are constitutionally wanting, but they are incorrect that, at least under
current law, opt-in procedures are required. Though Janus and Knox indi-
cate that may be the case, Keller, despite “its increasingly wobbly, moth-
eaten foundations,” 43 remains binding on this court. And Keller noted that
“an integrated bar could certainly meet its Abood obligation by adopting the
sort of procedures described in Hudson.” Keller, 496 U.S. at 17.
Hudson requires that a public organization collecting mandatory dues
and engaging in non-germane conduct have procedures that “include an
adequate explanation of the basis for the fee, a reasonably prompt oppor-
tunity to challenge the amount of the fee before an impartial decisionmaker,
and an escrow for the amounts reasonably in dispute while such challenges
are pending.” Hudson, 475 U.S. at 310. The explanation of the basis of the
fee must include “sufficient information to gauge the propriety of the union’s
fee.” Id. at 306. Hudson’s procedures contemplate an opt-out rule. And
Keller indicated that Hudson’s procedures are sufficient to satisfy a Bar’s obli-
gations. Therefore, assuming that plaintiffs can be compelled to join the Bar
at all, the Bar may constitutionally use some sort of opt-out procedure for
giving pro-rata refunds.
43
State Oil, 522 U.S. at 20 (quotation marks omitted).
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But, though the Bar may use opt-out procedures, its current proce-
dures are constitutionally inadequate. The Bar asserts that Keller did not hold
that Hudson’s procedures are constitutionally necessary. That is correct as
far as it goes: Keller left open whether “one or more alternative procedures
would likewise satisfy” the Bar’s obligation. Keller, 496 U.S. at 17. But Janus
and Knox have subsequently made clear that procedures even more protec-
tive than those described in Hudson (i.e., opt-in procedures) are necessary in
the closely related union context. 44 In the absence of Keller’s holding that
Hudson’s procedures are sufficient, we would be bound to follow the
Supreme Court’s directive in those cases and require opt-in procedures. But
of course, Keller’s indication that Hudson’s procedures are sufficient remains
binding. Therefore, given that Keller indicated that Hudson’s procedures are
sufficient, and Janus held even more protective procedures are necessary,
Hudson’s procedures are both necessary and sufficient. 45
The Bar’s procedures are inadequate under Hudson. The Bar does
not furnish Texas attorneys with meaningful notice regarding how their dues
will be spent. Nor does it provide them with any breakdown of where their
fees go. Instead, it places the onus on objecting attorneys to parse the Bar’s
proposed budget—which only details expenses at the line-item level, often
44
“Neither an agency fee nor any other payment to the union may be deducted
from a nonmember’s wages, nor may any other attempt be made to collect such a payment,
unless the employee affirmatively consents to pay.” Janus, 138 S. Ct. at 2486 (emphasis added);
see also Knox, 567 U.S. at 312–13 (explaining that the cases approving opt-out procedures
were more “historical accident” than “careful application of First Amendment princi-
ples”); id. at 314 (“By authorizing a union to collect fees from nonmembers and permitting
the use of an opt-out system for the collection of fees levied to cover nonchargeable
expenses, our prior decisions approach, if they do not cross, the limit of what the First
Amendment can tolerate.”).
45
In so holding, we part ways with the Ninth Circuit’s decision in Crowe, 989 F.3d
at 727, and align ourselves instead with the dissent, see id. at 734 (Van Dyke, J., dissenting).
32
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without significant explanation—to determine which activities might be
objectionable. That is a far cry from a Hudson notice, which estimates the
breakdown between chargeable and non-chargeable activities and explains
how those amounts were determined. See Hudson, 475 U.S. at 307 & n.18.
The Bar then leaves the objecting attorney with precious few worth-
while options to express his or her disapproval. Though attorneys may regis-
ter their complaints with committees and sections or lodge an objection at
the Bar’s annual hearing on its proposed budget, those processes give cold
comfort: Any objector’s opposition can be summarily overruled, leaving that
lawyer on the hook to fund ideological activities that he or she does not sup-
port. To obtain a refund, the Bar requires that attorneys object to a specific
activity. 46 Moreover, whether a refund is available is left to the sole
discretion of the Bar’s Executive Director, and refunds are issued only “for
the convenience of the Bar.” In the event a refund is denied, the objecting
attorney is out of luck. Hudson requires more than that.
VI.
Having held that the plaintiffs are entitled to partial summary judg-
ment, we turn to whether they warrant a preliminary injunction pending the
remedies stage. They do.
“We review a . . . denial of a preliminary injunction for an abuse of
discretion,” Moore v. Brown, 868 F.3d 398, 402 (5th Cir. 2017), “but we
review a decision grounded in erroneous legal principles de novo,” City of
Dall. v. Delta Air Lines, Inc., 847 F.3d 279, 286 (5th Cir. 2017) (quotation
marks omitted). As discussed at length, supra, the denial of the preliminary
46
See Schneider, 917 F.2d at 634–35 (holding that the system for processing objec-
tions was constitutionally insufficient under Keller where, most relevantly, objecting attor-
neys had to lodge objections to specific activities in order to receive a refund).
33
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injunction was based on an erroneous holding that the Bar was not engaged
in any non-germane activities, so our review is de novo.
To obtain a preliminary injunction, the plaintiffs must establish that
(1) they are “likely to succeed on the merits,” (2) they are “likely to suffer
irreparable harm in the absence of preliminary relief,” (3) “the balance of
equities tips in [their] favor,” and (4) “an injunction is in the public inter-
est.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
The plaintiffs have plainly satisfied the first factor. They are not just
likely to succeed on the merits; they have succeeded on the merits already.
The remaining factors also support granting the preliminary injunction.
First, “[t]he loss of First Amendment freedoms, for even minimal periods of
time unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.
347, 373 (1976) (plurality). Next, “injunctions protecting First Amendment
freedoms are always in the public interest.” Texans for Free Enter. v. Tex.
Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013) (quotation marks omitted).
Finally, the balance of equities weighs heavily in plaintiffs’ favor because the
only harm to the Bar is the inability to extract mandatory dues from the plain-
tiffs in violation of the First Amendment, which is really “no harm at all.”
Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006).
* * *
The district court erred in its reading of Lathrop and Keller and in its
application of Keller’s germaneness test to the Bar’s activities. We therefore
VACATE the summary judgment, RENDER partial summary judgment in
favor of the plaintiffs, and REMAND for the court to determine the full
scope of relief to which plaintiffs are entitled. We additionally REVERSE
the denial of plaintiffs’ motion for a preliminary injunction and RENDER a
preliminary injunction preventing the Bar from requiring the plaintiffs to join
or pay dues pending completion of the remedies phase.
34