“The First Amendment protects an individual’s right both to speak and not to speak. Similarly, it protects one’s right to associate and not to associate. Yet every lawyer in this circuit is required to join his or her state bar association to practice law. And those bar associations speak publicly on a variety of issues — some of them very controversial. That raises obvious constitutional concerns. 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. 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. In response, the Louisiana State Bar Association changed its internal policies and stopped almost all of its legislative activity. But Randy Boudreaux — a lawyer in Louisiana — claims that the LSBA is still flouting that decision. 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. To its credit, the LSBA has stopped much of its objectionable activity. But despite the LSBA’s scruples, Boudreaux has still identified some examples of non-germane speech.” The U.S. Fifth Circuit therefore reiterated what was said in McDonald — i.e. if mandatory bar associations are going to compel individuals to associate and speak, they must stay in their constitutionally prescribed lane:
“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. Promoting diversity efforts at law firms is germane, but opining on affirmative action is not. Raising awareness of the failure of firms to retain women is germane, but speech encouraging or discouraging abortion (or abortion insurance coverage for attorneys) is not. Similarly, advice about software designed for attorneys’ use is germane, but recommending that all attorneys purchase new iPhones is not. If a bar association provides advice, that advice must inherently relate to the legal profession or the practice of law. Advice is not germane just because, in the association’s view, it improves ‘wellness’ and therefore the practice of law indirectly. Although walnuts, exercise, and Vitamin D may be beneficial, they fall outside the LSBA’s purview, at least when they are the basis of generic advice to attorneys about health and fitness. Another set of tweets regarding technology and safety announcements are not germane for similar reasons. One tweet informed lawyers about an iPhone software update, as it would bring new upgrades to the Notes application. Those, too, are not inherently about the practice of law or the legal profession more generally. They therefore do not sufficiently relate to improving the practice of law in the state…. Generic Christmas and Halloween charity drives may be helpful to the community, and they may even — in some diffuse sense — increase goodwill toward the legal profession. But unlike the pro bono provision of legal services, they are not sufficiently germane to the regulation of the legal profession or the improvement in quality of legal services. If the LSBA wishes to engage in charitable activities and give back to the community, it should do so. But those efforts must be germane, and they generally are not germane unless they involve the LSBA’s character as a legal organization rather than a generic organization or a collective of charity-minded individuals…. If a mandatory bar association can say or promote anything ‘of concern to lawyers’, it is difficult to see any limit to what the LSBA could say or promote. That is to say: The germaneness test is not satisfied just because a particular personal matter might impact a person who is practicing law. Instead, speech must be reasonably related to the regulation or improvement of legal practice. That generally means that speech engaging with, promoting, or encouraging participation in wider public policy and social controversies is rarely, if ever, germane. A tweet apprising lawyers of the difficulty of student loans and possible student-loan reform fails that standard…. The LSBA’s pride flag icon, with its associated link, lacks the necessary hallmarks of germaneness. For starters, it is a general statement about LGBT Pride Month that offers neither advice nor opportunities, and it is not made specific to lawyers. Moreover, the article it links is a generic history of gay rights in the United States, tinged with various normative claims about society. Neither the article, the LSBA’s icon promoting the article, nor the surrounding context draws a link between the interests of ‘LGBT causes’ in society writ large and the improvement of legal practice in the state….
“We therefore affirm the judgment in part and reverse in part. We remand to the district court for a determination of the proper remedy and for proceedings not inconsistent with this opinion, although we take no position on the proper injunctive or declaratory relief. We also render a preliminary injunction preventing the LSBA from requiring Boudreaux to join or pay dues to the LSBA pending completion of the remedies phase.”
Boudreaux v. Louisiana State Bar Association, No.22-30564, 2023 U.S.App.LEXIS 30142 (5th Cir. Nov. 13, 2023).