Louisiana Bar Association’s Social Media Posts Violated Attorney’s Constitutional Rights

Louisiana’s mandatory state bar association violated an attorney’s First Amendment rights by spending dues money on speech that is not related to regulating lawyers or improving legal services, the 5th U.S. Circuit Court of Appeals has ruled.

In Boudreaux v Louisiana State Bar Association, et al. (Docket No. 22-30564), the 5th Circuit said the Louisiana State Bar Association (LSBA) strayed from its “constitutionally prescribed lane” with social media posts offering wellness advice, posting a rainbow flag and linking to an article on student-loan debt.

“We are chary of any theory of germaneness, that turns a mandatory bar association into a mandatory news mouthpiece,” the 5th Circuit said.

The 5th Circuit opinion was written by Judge Jerry E. Smith. Judge Carolyn Dineen King and Judge Jennifer Walker Elrod joined the decision.

Like the LSBA, the State Bar of Michigan (SBM) is also a mandatory bar association.
This means that, in order to practice law, Michigan attorneys must be a member of the SBM and pay annual dues to be licensed. According to the SBM website, the bar “operates under the supervision of the Michigan Supreme Court” and is “governed by the Michigan Supreme Court Rules Concerning the State Bar of Michigan.”

Background

In 2021, the LSBA suspended much of its legislative activities after the 5th Circuit ruled in McDonald, et al. v Longley, et al., 4 F 4th 229 (5th Cir. 2021), cert denied, 142 S Ct 1442 (2022), that the State Bar of Texas, a mandatory bar association, violated lawyers’ First Amendment rights because of lobbying activities.

The plaintiffs in McDonald sued the State Bar of Texas for using compulsory member dues on a “variety of controversial political advocacy.” The plaintiffs brought freedom of speech and freedom of association claims, asserting they could not be compelled to fund speech they did not support. The plaintiffs also asserted the bar’s “opt-out” procedures were constitutionally insufficient.

The 5th Circuit in McDonald held that, because the State Bar of Texas “did engage in non-germane activity,” its mandatory membership was subject to exacting scrutiny, which it basically failed. The McDonald panel also ruled the State Bar of Texas’s procedures for notifying members of its speech and giving them a chance to opt-out were “constitutionally insufficient.” The panel said the State Bar of Texas’s procedures “[did] not furnish Texas attorneys with meaningful notice regarding how their dues [would] be spent. Nor [did] it provide them with any breakdown of where their fees go.”

As a result, the plaintiffs in McDonald were entitled to relief on their free speech, free association, and inadequate notice claims, the 5th Circuit ruled.

In the present case - which is “nearly identical” to McDonald - Louisiana attorney Randy Boudreaux sued the LSBA, the Louisiana Supreme Court and its justices. He claimed that compulsory membership in the LSBA violated his rights to free speech and association.

‘Nongermane’ Speech

“Although lawyers do not have a categorical First Amendment right to disassociate from their state bar, compulsory bar membership is unconstitutional if a bar’s speech is not germane to regulating lawyers or improving the quality of legal services in the state,” the 5th Circuit said, citing Keller v State Bar of California, 496 US 1 (1990).

“Two years ago, we made that clear when we held that the State Bar of Texas violated its members’ rights to free speech and association by engaging in non-germane political advocacy,” the 5th Circuit noted.

Randy Boudreaux, however, claims the LSBA is “still flouting that decision,” the 5th Circuit said. “He insists that the organization’s ongoing expression is not germane and that his forced membership in the LSBA violates his speech and association rights.”

The 5th Circuit pointed out the LSBA “has stopped much of its objectionable activity.” But despite this, “Boudreaux has still identified some examples of non-germane speech. We therefore reiterate what we said in McDonald – if mandatory bar associations are going to compel individuals to associate and speak, they must stay in their constitutionally prescribed lane.”

In its decision, the 5th Circuit said the germaneness standard “requires inherent connection to the practice of law and not mere connection to a personal matter that might impact a person who is practicing law.”

According to the 5th Circuit, the LSBA violated Boudreaux’s First Amendment rights by posting the following on social media.

• A series of “Wellness Wednesday” posts relating to the health and well-being of lawyers.

• A post that included a rainbow flag icon that read “LGBT Pride Month” and included a link to an article on gay rights.

• Posts promoting “community engagement opportunities” for lawyers.

• A post sharing an article about the impact of student-loan debt on young lawyers’ life decisions and how the American Bar Association has begun to focus more on the issue.

“If a bar association is going to force individuals to associate with and pay for speech, that speech must be germane,” the 5th Circuit said. “Although judging germaneness is difficult, … we are bound to police the line that Keller and McDonald laid down. We have noted several instances of nongermane speech by the LSBA, including … its promotion of the article about student loan policy and its icon and link celebrating Pride Month.”

Accordingly, “[because] the LSBA engages in non-germane speech, its mandatory membership policy violates Boudreaux’s rights to free speech and free association,” the 5th Circuit held. “Additionally, Boudreaux is entitled to a limited preliminary injunction for the same reasons as were the plaintiffs in McDonald.”

The 5th Circuit remanded the case to the federal district court for a decision on the appropriate remedy. The panel also issued a preliminary injunction preventing the LSBA from requiring Boudreaux “to join or pay dues to the LSBA pending completion of the remedies phase.”