A federal appeals court has affirmed that the Louisiana State Bar Association violated a New Orleans attorney’s right to free speech and free association when it engaged in activities that were not germane to the legal profession.
The Fifth Circuit Court of Appeals handed down the decision Nov. 13 in the ongoing litigation brought by Randy Boudreaux against the LSBA. Boudreaux objected to subsidizing the LSBA with his mandatory dues when the association engaged in activities or communications not related to the legal profession.
In an earlier related decision, the Fifth Circuit held that the LSBA was bound by one of the court’s 2022 decisions, McDonald v. Longley. Under that ruling, the LSBA was obligated to only engage in activities that were germane to the legal profession. In turn, the bar association ceased its legislative activity, dissolved its Legislation Committee and restricted its future political speech, according to the Nov. 13 opinion.
“If a bar association is going to force individuals to associate with and pay for speech, that speech must be germane,” the Fifth Circuit said. “... We have noticed several instances of non-germane speech by the LSBA, including … its promotion of the article about student loan policy and its icon and line celebrating Pride Month.”
The court also validated Boudreaux’s objections to tweets about the “purported benefits of walnuts” and iPhone software updates, since these topics are not tied to the LSBA’s obligation to address issues relevant to the legal profession.
The general counsel of the Pelican Institute for Public Policy, which represented Boudreaux in the litigation, said she was optimistic the U.S. Supreme Court could go a step further in the future and find that mandatory bar membership is unconstitutional.
“No one should be forced to support speech they disagree with as a condition of practicing their profession,” Sarah Harbison told The Louisiana Record in an email. “Thankfully, the Fifth Circuit upheld that principle and protected the First Amendment when it ruled in favor of attorney Randy Boudreaux.”
As a result of the court’s decision, the case that supports mandatory bar memberships – Keller v. State Bar of California – is now on shaky ground, she said.
Current LSBA president Shayna Sonnier has acknowledged that some of the association’s activities veered from the constitutional straight-and-narrow.
“The court … found concerns with some of the LSBA’s charitable, informational and wellness-related speech activities and programs,” Sonnier said in a prepared statement. “The LSBA will continue its mission to serve attorneys and the public through the regulation of the legal profession and improving the quality of legal services through its activities and programming.”
The LSBA will ensure that the programming identified as not germane by the Fifth Circuit is no longer a part of the association’s activities, according to an LSBA news release.
The bar association also noted that Boudreaux did not prevail on a challenge to the LSBA’s procedures allowing members a way to object to communications they say go against the established legal standards.
In addition, the Fifth Circuit issued a preliminary injunction preventing the bar association from mandating that Boudreaux join the state bar association or pay LSBA dues until the legal remedy phase plays out.