Mandatory bar violated First Amendment by posting rainbow flag, wellness advice, 5th Circuit says
“We are chary of any theory of germaneness,” said the 5th U.S. Circuit Court of Appeals at New Orleans, “that turns a mandatory bar association into a mandatory news mouthpiece.” Photo by Infrogmation, CC-BY-SA-3.0, via Wikimedia Commons.
Updated: A federal appeals court has ruled for a Louisiana lawyer who alleged that the mandatory state bar association violated his First Amendment rights by spending dues money on speech that is not germane to regulating lawyers or improving legal services.
The Louisiana State Bar Association veered from its “constitutionally prescribed lane” when it posted wellness advice, linked to an article on student-loan debt and posted a rainbow flag, said the 5th U.S. Circuit Court of Appeals at New Orleans in a Nov. 13 opinion.
“We are chary of any theory of germaneness,” the 5th Circuit said, “that turns a mandatory bar association into a mandatory news mouthpiece.”
The appeals court ruled for lawyer Randy Boudreaux, who first sued when the Louisiana State Bar Association was adopting positions on pending bills in the state legislature, many of which regulated the public at large, rather than the legal profession.
The state bar suspended its legislative activities after the 5th Circuit ruled in July 2021 that the mandatory bar in Texas violated lawyers’ First Amendment rights because of lobbying activities. At the same time, the 5th Circuit ruled that Boudreaux could sue the mandatory bar in his state.
In the new decision, Judge Jerry E. Smith 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.”
The appeals court said the Louisiana State Bar Association violated dues-paying members’ First Amendment rights when it posted:
• A series of “Wellness Wednesday” posts relating to the health and well-being of lawyers. They touted the health benefits of walnuts, urged readers to work out at least three times per week, and encouraged lawyers to get more sunlight.
• A post featuring a large rainbow flag icon that read “LGBT Pride Month” and included a link to a History.com article on gay rights.
• Posts promoting community engagement opportunities for lawyers, including a posts about a Red Mass celebrating members of the legal profession and posts about holiday charity drives.
• A post that shared a Reuters article about the impact of student-loan debt on young lawyers’ life decisions and how the the ABA has made the issue more of a focus.
• A post about an iPhone software update that would bring new upgrades to the Notes application.
The 5th Circuit remanded the case to a district court for a decision on the proper remedy. Until a decision is made, Boudreaux does not have to join the mandatory bar or pay dues.
The case is Boudreaux v. Louisiana State Bar Association.
Publications with coverage of the decision include Courthouse News Service and Law.com.
Boudreaux was represented by the Goldwater Institute and the Pelican Institute, according to a press release.
“I’m pleased that the 5th Circuit takes the freedoms of speech and association seriously,” Boudreaux said in a statement. “Hopefully when this is finally resolved, professionals will enjoy more autonomy from compelled associations.”
The Louisiana State Bar Association told Law.com that it is reviewing “how best to address the issues identified by the court.”
The state bar also said it 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.”
Updated Nov. 15 at 11:13 a.m. to add the statement from Randy Boudreaux.
