First Amendment challenges against the constitutionality of mandatory bar associations have frequented federal appellate courts. However, only two Supreme Court cases are directly applicable to these claims, neither of which provides a clear framework to adjudicate all of the issues involved. As a result, appellate courts have taken divergent routes to determine the constitutionality of whether (1) mandatory membership to the bar generally violates the freedom of association, and (2) certain activities undertaken by mandatory bar associations violate the freedom of speech and, in some circuit courts, association. The first issue has resulted in a rift between circuits. The Sixth and Seventh Circuits assert that, pursuant to Supreme Court precedent, mandating attorneys to join a bar association does not violate the First Amendment freedom of association; the Fifth, Ninth, and Tenth Circuits disagree. As for the second issue, lower courts are left only with the Supreme Court’s vague description of what mandatory bar association activity is permissible.
The first issue’s circuit split has resulted in remarkable inconsistency among the states, thirty-one of which (and the District of Columbia) have mandatory— also known as integrated—bars. This Comment argues that the Sixth and Seventh Circuit Courts of Appeals, in Taylor v. Buchanan and Jarchow v. State Bar of Wisconsin, respectively, properly applied Supreme Court doctrine to the freedom of association issue, thus closing the door on such claims. As long as Supreme Court precedent remains binding, appellate courts are compelled to follow it. However, should the issue be determined in favor of the Fifth, Ninth, and Tenth Circuits, this Comment argues that freedom of association claims, along with freedom of speech claims, should be analyzed using a new proposed “germaneness” test.
This Comment introduces a multifactored sliding scale test to determine whether activities undertaken by integrated bar associations are sufficiently germane such that they do not violate the freedom of speech and, should the Sixth and Seventh Circuit approach be rejected by the Supreme Court, association. The test blends the approaches of the Fifth and Tenth Circuits to provide a comprehensive framework to determine the permissibility of bar association activity. Under this test, the challenged activity must satisfy a weak connection to pass the basic threshold—the standard for germaneness set forth by Chief Justice Rehnquist in South Dakota v. Dole. It then considers the strength of the connection between the activity and the stated goals of the bar association; the nature and public outreach of the activity; the societal dissonance of the challenged expression; and the bar’s level of funding toward the activity. This test synthesizes Supreme Court precedent and current appellate understanding of the germaneness test, creating an easily applied framework from existing caselaw.
A Peace Treaty for the Bar Wars: An Updated Framework to Determine Permissibility of Mandatory Bar Association Activity,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol72/iss1/3