State bar violated freedom of association after issuing statement against Trump, court finds

PORTLAND, Ore. (KOIN) – A federal appeals court in Oregon filed an opinion on Wednesday finding the Oregon State Bar infringed on an Oregon attorney's First Amendment right after the state bar magazine published a statement denouncing former President Donald Trump.

The complaint -- first reported by The Oregonian/OregonLive -- was filed by Oregon attorney Daniel Crowe and the Oregon Civil Liberties Attorneys against the Oregon State Bar.

Crowe claimed OSB violated his First Amendment rights to freedom of speech and freedom of association after OSB published a statement in its "Bulletin" publication in April 2018 denouncing white nationalism and then-president Trump.

The statement published by OSB seemingly referenced a 2017 Portland MAX attack that killed two people, and the deaths of three people when members from an alt-right rally clashed with counter protesters in Charlottesville, Virginia. That statement was signed by the presidents of seven Oregon Specialty Bar Associations, which are voluntary organizations separate from OSB, according to court documents.

The joint statement from 2018 read in part:

Through the recent events from the Portland MAX train attacks to Charlottesville, we have seen an emboldened white nationalist movement gain momentum in the United States and violence based on racism has become normalized. President Donald Trump, as the leader of our nation, has himself catered to this white nationalist movement, allowing it to make up the base of his support and providing it a false sense of legitimacy. He has allowed this dangerous movement of racism to gain momentum, and we believe this is allowing these extremist ideas to be held up as part of the mainstream, when they are not...President Trump needs to unequivocally condemn racist and white nationalist groups. With his continued failure to do so, we must step in and speak up.

According to court documents, Crowe objected to the statement and received a refund of his Oregon State Bar dues before filing the legal complaint, alleging OSB violated his First Amendment rights.

The complaint also alleged OSB violated the First Amendment because of the requirement for attorneys to join OSB in order to practice law in Oregon.

The case was previously dismissed but Crowe appealed.

On appeal, a three-judge panel on Wednesday affirmed part of the previous ruling and reversed another.

The judges found OSB did not violate Crowe's freedom of speech because OSB refunded him. The court also dismissed his claims that the state's requirement to join OSB in order to practice law in Oregon is a First Amendment violation.

The panel did find that OSB violated his right to freedom of association, according to court documents.

“The panel held that Crowe demonstrated an infringement on his freedom of association because he objected to certain statements by OSB in its magazine that would reasonably have been imputed to OSB’s members,” the judges wrote.

Reacting to the judges' opinion, the plaintiff's attorney, Scott Day Freeman, said, “We’re pleased that the 9th Circuit vindicated attorneys’ freedom of association rights under the First Amendment." He added, “Attorneys should never be forced to associate with speech they don’t support as a condition of practicing law.”

In a statement to KOIN 6 News, Oregon State Bar Communications Director Kateri Walsh said, “We are pleased that the Ninth Circuit recognized that mandatory membership/licensing by the Oregon State Bar is constitutional, and that as an arm of the state the Bar is immune from liability in this case. In doing this, it dismissed numerous elements of the plaintiff’s case. The Court also provided helpful guidance about how the Bar should operate in the future, including how to clarify when statements are not made on behalf of all members of the Bar. The Court also suggested that any remedies (such as those clarifying statements) need not be drastic in nature. We will continue to review the decision and work with counsel on next steps following the remand.”