By Alex De Grand, Legal Writer, State Bar of Wisconsin
Dec. 15, 2009 – Attorneys challenging the State Bar of Wisconsin’s use of their dues money to fund a public image media advertising campaign failed to persuade a federal district court that their First Amendment rights had been violated.
The attorneys – Jon Kingstad, Steven Levine, and James Thiel – were appealing an arbitrator’s determination that the public image campaign was not ideological or political and so it did not run afoul of Wisconsin Supreme Court Rule 10.03 (5)(b)1, which prohibits use of mandatory dues for “political or ideological activities that are not reasonably intended for the purpose of regulating the legal profession or improving the quality of legal services.”
In a Nov. 23 order, Magistrate Judge Stephen Crocker agreed with the arbitrator that it did not matter whether the public image campaign was germane to the purpose of regulating the legal profession or improving the quality of legal services. Those forced to associate with a state bar organization only suffer a First Amendment violation when they are compelled to contribute to speech contrary to their beliefs, the court concluded.
Scope of First Amendment rights
The U.S. Supreme Court considered the speech rights of lawyers who are required to belong to a state bar in Keller v. State Bar of California, 496 U.S. 1 (1990). The Court held that such an “integrated bar” could use mandatory dues for activities that are germane to the goals of regulating the legal profession or improving the quality of legal services, but it could not compel members to fund activities of an ideological nature falling outside those areas of activity.
Following Keller, the Seventh Circuit Court of Appeals held in Thiel v. State Bar of Wisconsin, 94 F. 3d 399 (7th Cir. 1996), that the only state bar expenses “subject to First Amendment challenge are those with an ideological or political tinge.” The Supreme Court upheld the compelled contributions from fruit producers for a generic advertising campaign in Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997), finding the expressive activity to be neither ideological nor political.
United Foods
The court discounted the attorneys’ argument that the Supreme Court overruled Thiel and Glickman in U.S. v. United Foods, 533 U.S. 405 (2001). In United Foods, the Court found unconstitutional certain mandatory assessments imposed on mushroom handlers for the promotion of mushroom sales – a non-political and non-ideological expressive activity.
Upon “careful examination” of United Foods, the district court said that the “ideological or political” limitation applies to the compelled contributions of members required to associate for other reasons than the speech in question. “No such required association was present in the statutory mechanism requiring compelled contributions in United Foods, except for the purpose of ‘generat[ing] the very speech challenged,’” the court wrote.
With this distinction, the court said that Keller and Glickman “hold that compelled contributions for speech are permissible so long as the speech is ‘germane’ to the purposes of a required group action.”
“The germaneness test and the ‘ideological or political’ limitation described in Thiel and Glickman are different methods to address the same concern: how to ascertain the boundaries of free speech rights in a forced group,” the court wrote. “[T]he very existence of the forced group is itself a ‘significant impingement of First Amendment rights,’ but it is an impingement justified by the government’s interest in setting up the group in the first place.”
In the instance of an integrated state bar, the government’s interest is regulation of the legal profession and improvement of legal services available to people of the state.
Challenge to the group itself
The court suggested that the attorneys’ real complaint is with the fact that they are required to belong to a state bar.
“Unless compelled contributions to speech relate to ideological or political speech (‘freedom of belief’), the objection to the speech is simply an objection to the fact that the forced group is speaking at all, rather than a challenge to the content of the speech,” the court wrote. “In this situation, the member’s forced contribution is nothing more than an aspect of his/her participation in the group itself and therefore ‘does not increase the infringement of [a member’s] First Amendment rights already resulting from the compelled contribution.”
The motion seeking review of the arbitrator’s decision was originally filed in the Circuit Court for Dane County, Wisconsin, but was removed to federal court on the grounds that it has original jurisdiction over this review because it hinges on a constitutional challenge.
Related articles:
Arbitrator to decide by year’s end on Keller dues objection – Nov. 13, 2008
Arbitrator determines that Public Image Campaign funding was properly treated by the Bar for dues purposes – Dec. 12, 2008
