Louisiana Lawyer’s Rights Violated by Wellness, LGBTQ+ Posts

A Louisiana lawyer’s First Amendment rights were violated when the state bar association suggested in tweets promoting wellness that all lawyers eat walnuts, get more sun, and work out three times a week, the Fifth Circuit said.

The statements weren’t germane to the practice of law because they didn’t sufficiently relate to legal practice or the legal profession, the opinion by Judge Jerry E. Smith said. “Even assuming healthier lawyers are generally more effective lawyers,” the Louisiana State Bar Association isn’t “an all-encompassing wellness service that may comment on every facet of lawyers’ health and fitness,” Smith said Monday.

Louisiana attorneys must belong to the LSBA to practice law in Louisiana, the US Court of Appeals for the Fifth Circuit said. Previously, the LSBA engaged in a variety of political speech and advocacy, but under recent US Supreme Court and circuit precedent, attorneys can’t be compelled through mandatory dues to pay for LSBA speech that they disagree with, the appeals court said.

A mandatory bar association can require lawyers in its jurisdiction to be members and pay dues to the bar if its speech is germane—if it’s necessary for regulating the legal profession or improving the quality of the legal service available to the people of the state, the appeals court said. If the speech is germane, then there is no free association or free speech problem under the First Amendment, it said. But if the speech is non-germane, it will be subjected to exacting scrutiny, which it will fail, it 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 Fifth Circuit said. Advice is not germane just because, in the association’s view, it improves “wellness” and therefore the practice of law indirectly, it said. “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,” it said.

Randy Boudreaux also challenged tweets regarding technology and safety and the appeals court said that they also weren’t germane because they weren’t inherently about the practice of law or the legal profession more generally.

Boudreaux further objected to tweets promoting community engagement opportunities for lawyers—specifically a notice about a Catholic Mass celebrating all members of the legal profession and another notice concerning holiday charity drives for Christmas and Halloween.

The LSBA responded that it’s important for lawyers to participate in community events and pro bono work, which bring goodwill to the legal profession and improve the perception of the practice of law. But the appeals court said the tweets weren’t inherently related to actual legal practice and therefore weren’t germane.

An American Bar Association article about lawyers’ student loan debt also wasn’t germane, the Fifth Circuit said. “The germaneness test is not satisfied just because a particular personal matter might impact a person who is practicing law,” it said.

A link to an article during Pride Month about the history of gay rights in the US and a large rainbow flag icon that read “LGBT Pride Month,” were also not deemed germane. They were a general statement about Pride Month that wasn’t made specific to lawyers, the appeals court said.

But the Fifth Circuit upheld LSBA’s notice and opt-out provision that allows lawyers to see what their dues are being used for and opt-out of messages they don’t wish to promote.

Judges Carolyn Dineen King and Jennifer Walker Elrod joined the opinion.

The Goldwater Institute, the Pelican Institute for Public Policy, and Dane S. Ciolino of Metairie, La., represented Bordeaux. Stanley Reuter Ross Thornton & Alford LLC represented the LSBA.

The case is Boudreaux v. La. State Bar Ass’n, 2023 BL 408771, 5th Cir., No. 22-30564, 11/13/23.