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Oregon Bar Faces Revived Claim Over Anti-Racist Statements

Feb. 26, 2021, 9:41 PM

Members of the Oregon State Bar who say the organization violated their freedom of speech and association by publishing statements denouncing racism, racist violence, and discrimination had one of their claims revived by the Ninth Circuit on Friday.

The lawyers may have a viable claim for freedom from compelled association, but the lower court will need to determine what guidelines and standards apply to the bar’s actions, the appeals court said in a per curiam opinion.

Their free speech claim fails because the OSB refunded each of them $1.15, the share of their bar dues that went toward publishing the April 2018 Bar Bulletin, where the statements appeared, the appeals court said.

Four individual attorneys and an organization, the Oregon Civil Liberties Attorneys, in two separate suits, brought claims over the pair of statements by bar leadership and “specialty” bar associations, according to the court.

The two statements appeared across from each other in the bulletin. “As the United States continues to grapple with a resurgence of white nationalism and the normalization of violence and racism, the Oregon State Bar remains steadfastly committed to the vision of a justice system that operates without discrimination and is fully accessible to all Oregonians,” the bar leaders’ statement began.

The statement by the Oregon Asian Pacific American Bar Association and several other specialty bar associations also condemned racist violence and additionally referred to statements by then-President Donald Trump.

The bar made refunds to members who objected to these statements, even though it considered them “germane” to its work improving legal services.

The lawyers who sued are required to be members of the OSB to practice law in the state. They claim that their right to freedom of association was violated because the OSB engages in political activity, including the Bulletin statements.

The U.S. Court of Appeals for the Ninth Circuit first rejected the trial court’s view that the OSB is immune to suit as an arm of the state. so the suits aren’t blocked for that reason, it said.

The speech claim can’t proceed, it said. Whether the statements were “germane” or not under U.S. Supreme Court precedent, the bar satisfied its responsibility to avoid compelling speech through its refund procedures, the majority of the panel said.

Judge Lawrence VanDyke, in a partial dissent, said it wasn’t obvious that the OSB’s “after-the-fact safeguards” such as refunds were sufficient to avoid compelling speech.. He would have deferred the issue and given the district court a chance to revisit it. .

But the panel unanimously held that existing precedent didn’t dispose of the free-association claim, and outlined issues for the lower court to address on remand.

Judges Jay S. Bybee, along with Judge Kathleen Cardone of the Western District of Texas, also served on the panel.

The Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Military Disability Lawyer LLC, and Michael L. Spencer, who practices in Klamath Falls, Ore., represented the plaintiffs.

Miller Nash Graham & Dunn LLP, Tonkon Torp LLP, and Schwabe, Williamson & Wyatt PC represented the OSB.

The case is Crowe v. Or. State Bar, 9th Cir., No. 19-35463, 2/26/21.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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