Two months ago, I — along with Tony McDonald of Empower Texans and veteran conservative lawyer/writer Mark Pulliam — joined forces to sue the State Bar of Texas. I joined this suit in my individual capacity and in no way represent The Daily Wire, First Liberty Institute (where I serve in an Of Counsel capacity), or any other organization.
Represented by Consovoy McCarthy Park PLLC, we make a First Amendment claim that mandatory association with and dues payment to a state bar association is unconstitutional insofar as the bar engages in political and ideological activities with which we disagree.
Our formal complaint, filed in the U.S. District Court for the Western District of Texas, is publicly available here. As my co-plaintiff Pulliam notes, there are also similar lawsuits currently pending against the state bar associations of North Dakota, Oklahoma, Oregon, and Wisconsin.
The clearest impetus for the filing of these lawsuits is the U.S. Supreme Court’s case decided last June, Janus v. AFSCME. In Janus, the Court held that mandatory extraction of agency fees for non-consenting public-sector labor union members — thereby coercing individuals to endorse ideas they find objectionable — is violative of the First Amendment. So although the Court held in the 1990 case of Keller v. State Bar of California that attorneys may be compelled to join and pay membership dues to a state bar for limited purposes only, Janus seriously eroded Keller‘s legal underpinning even further. Our suit, in similar fashion to the concurrent suits against other state bar associations, thus argues that the 31 states that require the payment of bar dues are in violation of the First Amendment. As the Court stated in Janus, “the right to eschew association for expressive purposes is … prohibited” under the First Amendment.
Even before the Supreme Court decided Janus, the Court’s precedent was clear that mandatory bar associations may not use compelled dues for non-regulatory political and ideological activities. And indeed, the State Bar of Texas does engage in numerous political or ideological activities with which I, McDonald, and Pulliam disagree. As our complaint details, we would not have joined the Bar if we were not compelled to do so, and we object to being compelled to subsidize activities unrelated to the Bar’s core regulatory functions — activities that include various “diversity” initiatives, “access to justice” initiatives pertaining to advocacy for illegal aliens, and the Bar’s tendentious legislative agenda.
Our lawsuit recently received a boost when powerful Texas Attorney General Ken Paxton — whose legal team consists of “dedicated and principled constitutionalists,” as I told the left-leaning Texas Tribune — filed a “friend of the court” brief on our behalf. In the brief, Paxton notes that he himself is a member of the Bar, and that he therefore “has a vested interest in ensuring that the State Bar — which he is compelled to join and fund as a condition of his profession — does not violate the constitutional rights of its members.”
Our current motion for summary judgment is pending in front of Judge Lee Yeakel of the Western District of Texas. Regardless of which side prevails, an appeal can likely be expected.
But one thing is for sure: We will not stop fighting for our First Amendment freedoms. I am proud to be a part of this important constitutional lawsuit against a government-sanctioned, ideologically driven cartel.