A man types into a keyboard during the Def Con hacker convention in Las Vegas, Nevada, U.S. on July 29, 2017. REUTERS/Steve Marcus Acquire Licensing Rights

• Posts on student debt, eating walnuts irrelevant to regulating lawyers
• But mandatory bar membership still legal, panel says

Nov 14 (Reuters) – A U.S. appeals court has ruled that the Louisiana State Bar Association (LSBA) violated the free speech rights of dues-paying members by making various website and social media posts that were not relevant to regulating the legal profession.

A unanimous three-judge panel of the 5th U.S. Circuit Court of Appeals ruled on Monday that posts about law school debt, the health benefits of exercise and eating walnuts, and LGBT Pride Month, among others, violated the First Amendment of the U.S. Constitution because they had no connection to improving legal services in the state.

The 5th Circuit partially reversed a Louisiana federal judge who had dismissed a lawsuit against the state bar by Randy Boudreaux, a New Orleans-based insurance defense lawyer who says he should not be forced to join the LSBA and subsidize its activities.

Louisiana, like many other U.S. states, requires lawyers to join the state bar and pay dues of up to $200 per year.

The U.S. Supreme Court in the 1990 case Keller v. State Bar of California rejected claims that compulsory bar membership illegally forces lawyers to support speech with which they may disagree. But the court said state bars could only engage in speech relevant to regulating lawyers or improving the practice of law.

The 5th Circuit on Monday rejected a broad view of speech that is permissible under Keller.

“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,” Circuit Judge Jerry Smith wrote.

The LSBA did not immediately respond to a request for comment.

James Baehr of the Pelican Institute for Public Policy, a conservative think tank that represents Boudreaux, said: “We’re excited that the court has vindicated Randy’s free association and free speech rights and we’re looking forward to going back to the district court and getting a remedy that ensures the protection of those rights.”

Boudreaux sued the LSBA in 2019, arguing that mandatory bar association membership was unconstitutional regardless of whether a state bar’s activities are germane to regulating the legal profession.

He cited the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME that said fees public-sector unions charged to workers who are not members of a union violated their free speech rights.

U.S. District Judge Lance Africk in New Orleans dismissed the case last year. He said that Janus had not overruled Keller, and that posts by the LSBA were relevant to its purpose because they aimed to provide useful advice to lawyers.

The 5th Circuit on Monday rejected the argument about Janus, joining every other appeals court to consider the issue. The panel said that Janus “casts serious doubt on Keller’s premise,” but that it remains bound by Keller until the Supreme Court overrules it.

But the court said the LSBA had engaged in speech that was not germane to its purpose, in violation of Keller, and rejected the association’s claim that the information it provided was relevant to the practice of law.

“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,” Smith wrote for the court.

The court remanded the case to Africk to determine an appropriate remedy for the LSBA’s free speech violations.

The panel included Circuit Judges Carolyn King and Jennifer Walker Elrod.

The case is Boudreaux v. Louisiana State Bar Association, 5th U.S. Circuit Court of Appeals, No. 22-30564.

For Boudreaux: James Baehr of the Pelican Institute for Public Policy; Scott Freeman of the Goldwater Institute

For the state bar: Richard Stanley of Stanley Reuter Ross Thornton & Alford.

Read more:

Louisiana lawyer, citing Janus, challenges mandatory bar association dues

Court rejects free-speech challenge to mandatory bar dues in Wisconsin

Supreme Court won’t take up free-speech challenges to mandatory bar dues

Janus doesn’t block mandatory bar association dues – 10th Circuit

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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The post Louisiana State Bar violated lawyers’ free speech rights, appeals court rules appeared first on Attorney Legal Counsel.