[00:00:00] Speaker 00:
May it please the court, Scott Dave Freeman on behalf of the appellants, Daniel Crow and the Oregon Civil Liberties Attorneys.

[00:00:07] Speaker 00:
And I'd like to reserve two minutes, if I may, for rebuttal.

[00:00:12] Speaker 00:
A mandatory bar association that engages in non-germane conduct cannot compel association.

[00:00:19] Speaker 00:
That principle is consistent with the US Supreme Court's holdings in Keller and in Janus.

[00:00:25] Speaker 00:
The overriding first principle here is the freedom to associate.

[00:00:29] Speaker 00:
We each have an individual right to join or not join organizations as we deem fit.

[00:00:36] Speaker 06:
Just a quick question.

[00:00:37] Speaker 06:
Your client is still a member of the bar, correct?

[00:00:40] Speaker 06:
Correct.

[00:00:40] Speaker 06:
OK, continue.

[00:00:41] Speaker 00:
as our members of the Oregon Civil Liberties Attorneys.

[00:00:45] Speaker 00:
He was for a time on the pro bono status.

[00:00:47] Speaker 00:
He's now, I believe, reinstated himself as full time status.

[00:00:51] Speaker 00:
Colonel Peterson, though, resigned.

[00:00:53] Speaker 00:
He is not part of the appeal.

[00:00:55] Speaker 00:
Again, we are free to join charitable organizations that do good work, like the Salvation Army.

[00:01:01] Speaker 00:
We're free to join voluntary bar associations, like the Oregon Association of Defense Council, or the ABA, or the Federalist Society.

[00:01:10] Speaker 00:
We're free to join political parties.

[00:01:12] Speaker 00:
But people should not be compelled by the government to join any of those organizations to practice their profession.

[00:01:18] Speaker 00:
Nobody is compelled to join or associate with those types of organizations to earn a living, but lawyers in the state of Oregon are.

[00:01:27] Speaker 00:
And they're unlike their colleagues in at least 20 other states who are not compelled to join mandatory bar associations.

[00:01:34] Speaker 00:
As this court acknowledged in Crow I, we've been here before, and the Fifth Circuit agreed in the McDonald and Boudreaux decisions, the question unanswered by Keller and Lathrop is the broad freedom of association issue.

[00:01:50] Speaker 00:
And that's what we have before us here now.

[00:01:53] Speaker 00:
Janus answers that question.

[00:01:55] Speaker 00:
Janus involved a governmental compulsory union agency fee issue.

[00:02:06] Speaker 00:
And it established a standard for analyzing those types of cases.

[00:02:10] Speaker 00:
Keller said that when you analyze a mandatory state bar, you use the standard for governmental union cases.

[00:02:18] Speaker 00:
Before that was the Abboud case.

[00:02:20] Speaker 00:
No longer Abboud has been overruled expressly by Janus.

[00:02:23] Speaker 00:
Now the standard is articulated by Janus.

[00:02:27] Speaker 00:
Janus says that to compel membership, the government needs to have a very good reason.

[00:02:32] Speaker 00:
It needs to be focused on that reason.

[00:02:34] Speaker 00:
If it's going to trot upon associational rights, it must take the least restrictive means.

[00:02:40] Speaker 00:
It needs to be tailored in that respect.

[00:02:42] Speaker 05:
So freedom of association cases are usually about

[00:02:46] Speaker 05:
people attributing to the members some view, that the association has some communicative message.

[00:02:53] Speaker 05:
If everyone knows that the bar is mandatory, why would there be any kind of message?

[00:02:58] Speaker 05:
Why would anyone think that members of the bar all agree with everything the bar says?

[00:03:01] Speaker 00:
Your Honor, I respectfully disagree.

[00:03:04] Speaker 00:
I think the associational right is personal.

[00:03:07] Speaker 00:
It is individual.

[00:03:08] Speaker 00:
It is not dependent upon third parties and what they may think is attributable to me.

[00:03:13] Speaker 00:
It is my choice or the plaintiff's choice to join or not join an organization.

[00:03:19] Speaker 00:
That's where the associational right is viable.

[00:03:20] Speaker 05:
So what if instead of using the word membership and join, the bar just started using the word license.

[00:03:27] Speaker 05:
Licensee.

[00:03:28] Speaker 05:
You have to get a license.

[00:03:29] Speaker 05:
Would that solve the problem?

[00:03:30] Speaker 00:
No, Your Honor, because that would be a semantical difference.

[00:03:33] Speaker 00:
The problem here that we've argued in our case, and it makes us a little bit distinct from the Gruber case, is that we've argued that the bar is engaged in non-Germane conduct, conduct that is not strictly related and narrowly focused.

[00:03:46] Speaker 05:
But if you're just a licensee, you don't feel like you're a member.

[00:03:49] Speaker 05:
And no one else does think you're a member.

[00:03:51] Speaker 05:
You're just a licensee.

[00:03:52] Speaker 05:
You have to get a license from this thing.

[00:03:54] Speaker 05:
Why is that not?

[00:03:55] Speaker 05:
I don't understand.

[00:03:55] Speaker 05:
You're not paying for it if you get the dues back, the portion back.

[00:03:59] Speaker 05:
So what's the problem?

[00:04:00] Speaker 00:
Well, because you are associated with the conduct of, from your own perspective, associated with the conduct of the bar association that you're compelled to be a member of.

[00:04:10] Speaker 00:
And when the bar engages in conduct like lobbying the legislature on matters unrelated to the regulation of lawyers in their capacity as lawyers, as the court in McDonald phrased it.

[00:04:21] Speaker 05:
But if all you have is a license to practice law,

[00:04:23] Speaker 05:
and you can get your money back for the portion used on the lobbying, why is it rational to feel like you're connected with the lobbying?

[00:04:30] Speaker 05:
You're not paying for it.

[00:04:31] Speaker 05:
What's the problem?

[00:04:34] Speaker 00:
Well, the situation you describe is what was faced in Keller in terms of the compelled speech claim.

[00:04:39] Speaker 00:
And that is a part of our claim.

[00:04:41] Speaker 00:
Crow One dismissed that claim.

[00:04:43] Speaker 00:
It's no longer part of the appeal.

[00:04:44] Speaker 05:
But I think because of that, we have to assume that you're going to get back whatever money you want.

[00:04:49] Speaker 00:
The bar is created in part by the fact that it has the power to compel dues to be paid.

[00:04:57] Speaker 00:
But the associational injury is untethered from the actual dues payment.

[00:05:03] Speaker 00:
Repayment of dues would not cure the associational injury.

[00:05:07] Speaker 00:
And let me give you an example.

[00:05:08] Speaker 00:
The state bar president, the officials of the state bar are volunteers.

[00:05:14] Speaker 00:
And the state bar president could go to the legislature

[00:05:16] Speaker 00:
and lobby, she could lobby in the capacity as president of the state bar and announce that, say, we're for this bill.

[00:05:25] Speaker 00:
That would involve zero expenditure of money by the bar.

[00:05:28] Speaker 00:
If you complained about it, the bar would go look at its books and say, well, you get a check for zero dollars and zero cents.

[00:05:34] Speaker 00:
That does not cure the association.

[00:05:36] Speaker 05:
What if she went to the legislature and said, I'm the president of the bar.

[00:05:40] Speaker 05:
We don't know if every member of the bar agrees with us, but here's what I think the bar should do, or the bar's position should be.

[00:05:46] Speaker 00:
We don't think that cures of having a disclaimer like that.

[00:05:49] Speaker 00:
Why not?

[00:05:51] Speaker 00:
Because Mr. Kirkrow would be still compelled to be a member of an organization that's voice is enhanced by the fact that he is a member.

[00:06:00] Speaker 05:
But if they say, OK, what if we say he's a licensee, not a member?

[00:06:06] Speaker 05:
And when the person speaks on behalf of the bar, they say, as you know, we don't know if all our licensees agree.

[00:06:11] Speaker 05:
That doesn't solve it?

[00:06:12] Speaker 00:
That doesn't solve it, because by virtue of his compelled membership, he is associated with that.

[00:06:19] Speaker 00:
No matter what disclaimers the bar may offer, he's a part of it.

[00:06:22] Speaker 00:
The voice of the bar is enhanced by virtue of the fact that there are tens of thousands of members of the bar.

[00:06:28] Speaker 05:
Even if they say, we might not be speaking on behalf of all of them?

[00:06:32] Speaker 00:
Correct.

[00:06:34] Speaker 05:
In what way is it enhanced at that point?

[00:06:37] Speaker 00:
Because they're speaking on behalf of, not on behalf of, the individual isn't saying I'm speaking on my own behalf.

[00:06:43] Speaker 00:
That would be fair.

[00:06:44] Speaker 00:
That would be their right.

[00:06:45] Speaker 00:
They're saying we're speaking on behalf of the Bar Association.

[00:06:49] Speaker 00:
Maybe everyone doesn't agree with us.

[00:06:50] Speaker 00:
I think that's probably a tautology in any instance.

[00:06:56] Speaker 00:
You're never going to have 100% agreement in any organization.

[00:06:59] Speaker 00:
But we speak on behalf of those members that agree with what we're saying now.

[00:07:03] Speaker 00:
Colonel Crowe and the Oregon Civil Liberties Lawyers are still, nevertheless, they're part of the bar.

[00:07:08] Speaker 00:
They're part of that message that the bar is delivering.

[00:07:10] Speaker 00:
That's why people are going to be listening to the state bar president.

[00:07:14] Speaker 00:
They speak on behalf of this organization, this body that's existed for decades, comprised of all these smart people, lawyers.

[00:07:22] Speaker 00:
And so that still constitutes the constitutional injury for him.

[00:07:27] Speaker 00:
uh... this was faced by the uh... the court in mcdonald and redraw also looked at that uh... and it it didn't matter what the whether there was a disclaimer didn't matter that not everyone might have agreed with positions the bar was taking the we have to assess whether that concern you're articulating is reasonable i mean what if you have like a you start to think that everyone is speaking on your behalf and it's sort of a

[00:07:57] Speaker 05:
Um,

[00:07:59] Speaker 05:
irrational fear that everyone out on the street is speaking on your behalf.

[00:08:01] Speaker 05:
Can you now say they're all speaking on your behalf?

[00:08:03] Speaker 05:
I mean, if you're a licensee of an organization and the organization is disclaiming speaking on your behalf, at what point is it irrational to have the worry that you're talking about?

[00:08:13] Speaker 00:
Well, if you remember, say, a voluntary bar association, they too can say, we're here taking this position on this bill.

[00:08:20] Speaker 00:
Not everyone in our organization may agree with us or not.

[00:08:23] Speaker 00:
But if you remember and you didn't like that, you could disassociate yourself with it.

[00:08:27] Speaker 00:
You could quit the organization.

[00:08:29] Speaker 00:
You can't quit the Oregon State Bar.

[00:08:31] Speaker 00:
You are compelled to be a member of it in order to earn a living.

[00:08:34] Speaker 00:
And that's where the associational injury arises.

[00:08:37] Speaker 06:
So if the Oregon State Bar, under your view, if the president of the Oregon State Bar said, you know, go Blazers, can't say that.

[00:08:45] Speaker 06:
Because I might be a Sonics fan.

[00:08:48] Speaker 00:
said that everyone should wear gold blazers.

[00:08:50] Speaker 06:
No, no, no.

[00:08:51] Speaker 06:
Go blazers.

[00:08:52] Speaker 06:
Oh, go blazers.

[00:08:53] Speaker 06:
In Oregon, the trailblazers.

[00:08:55] Speaker 06:
Gotcha.

[00:08:56] Speaker 06:
They're not very good this year, but in years past, they were.

[00:08:59] Speaker 06:
And so if the president of the Oregon State Bar said, you know what, the blazers this past year were really bad, but 24, 25, they're going to turn the corner, go blazers.

[00:09:08] Speaker 06:
Are you saying a member of the Oregon Bar could sue for a First Amendment violation because they're a Golden State Warriors fan or a Lakers fan?

[00:09:16] Speaker 00:
I would say it would be problematic if they were speaking as an official statement of their organ state bar.

[00:09:21] Speaker 06:
Right.

[00:09:22] Speaker 06:
Absolutely.

[00:09:22] Speaker 00:
Absolutely.

[00:09:23] Speaker 00:
Similarly, I think if the bar came out and said Happy Fourth of July or Merry Christmas or something like that, that would not be germane to the regulation of lawyers.

[00:09:32] Speaker 00:
That would be impermissible.

[00:09:33] Speaker 00:
The Boudreau case, what was distilled down by the Fifth Circuit, ended up with 17 essentially social media posts.

[00:09:41] Speaker 00:
Some of them were simply retweets, amplifying an article about student loan debt, retweeting a notice about the St.

[00:09:48] Speaker 00:
Thomas More Red Mass, sending out emails about their favorite charities, or wellness tweets about the benefits of eating broccoli, or getting a good night's sleep, or changing the batteries in your smoke detector.

[00:10:00] Speaker 00:
Those things, probably, I mean, in some sense, there was probably an employee that spent a few seconds on those things.

[00:10:08] Speaker 00:
But really, if you asked for your rebate, it would be a fraction of a fraction of a fraction of a penny, which I don't think you can write a check for that.

[00:10:15] Speaker 00:
But that, nevertheless, those were non-germane.

[00:10:19] Speaker 06:
And that's what I want to drill down on in a second.

[00:10:21] Speaker 06:
I know we want to make sure you reserve your time.

[00:10:23] Speaker 06:
But I can see why the statement in this case is problematic.

[00:10:27] Speaker 06:
I mean, in a way that's good for your advocacy.

[00:10:30] Speaker 06:
I'm saying that the statement that Barr issued here concerns me.

[00:10:34] Speaker 06:
But I'm trying to understand, is there a line where the line I'm trying to understand in my head is that can the president of the Oregon State Bar literally say anything without there being a problem?

[00:10:45] Speaker 06:
Is this just another way to re-argue Janus this way?

[00:10:48] Speaker 06:
Is there anything that the Oregon State Bar president can say publicly as the president of the Oregon State Bar with a mandatory membership that you think would not be problematic?

[00:10:59] Speaker 00:
It would be problematic if it does not concern, when they're making an official statement on behalf of the bar, the regulation of lawyers and their capacity as lawyers or their role in improving the quality of legal service.

[00:11:10] Speaker 06:
So if it's germane under Keller, you're saying it would be OK?

[00:11:16] Speaker 00:
I think you can see.

[00:11:17] Speaker 00:
I mean, germane-ness is this construct to assess whether it is focused in on the interest of the bar.

[00:11:23] Speaker 00:
Right.

[00:11:23] Speaker 06:
If the president of the bar says, hey, everyone, make sure you're compliant with CLE,

[00:11:28] Speaker 06:
That would be okay, right?

[00:11:30] Speaker 00:
That would be... I think the bars... Well, if that's not okay, then I don't see what is okay.

[00:11:36] Speaker 00:
Well, no, I think what I was about to say is I think the bar would have a better argument there, because they would say, look, the state has an interest in lawyers knowing what the law is, changes in the rules of procedure.

[00:11:47] Speaker 00:
Lawyers interface directly with the courts, and we want the courts to work efficiently.

[00:11:52] Speaker 00:
And we're here to try to help you in some sense.

[00:11:54] Speaker 00:
We're all trying to help you reach a just and right decision.

[00:11:57] Speaker 00:
So having educated lawyers, I think, would be in the interest, educated on new rules and changes of the law.

[00:12:05] Speaker 00:
would be where the bar would have a good argument that it could make statements like that.

[00:12:09] Speaker 01:
But you're saying it's debatable.

[00:12:10] Speaker 01:
Your actual argument is that there shouldn't be bar associations, right?

[00:12:17] Speaker 01:
Because there is no, unless it is purely a licensing agency, as Judge Friedland was saying, somebody is always going to think that whatever is happening at the bar association is not germane to what they care about, right?

[00:12:34] Speaker 00:
We make that argument.

[00:12:35] Speaker 00:
That's the argument that the Gruber plaintiffs and I don't want to steal their thunder.

[00:12:40] Speaker 00:
But yes, we would share that argument, but we're giving the court this

[00:12:45] Speaker 00:
other bases to find that they have violated the exacting scrutiny standard.

[00:12:50] Speaker 00:
They've engaged, as McDonald said, a bar association that engages in non-germane conduct fails exacting scrutiny.

[00:12:58] Speaker 00:
That means constitutional right to association has been violated and that's why we think the district court here should be reversed in that respect and that this court should offer

[00:13:08] Speaker 05:
Some of the relief that the Fifth Circuit did but the Fifth Circuit thinks the bar can't talk about broccoli being healthy can't have a toy drive Why should we agree that they've gone down a good path?

[00:13:19] Speaker 00:
I mean, what I think I'm hearing is, is there this de minimis exception to the First Amendment?

[00:13:25] Speaker 00:
And I don't think the law supports that.

[00:13:27] Speaker 00:
Keller doesn't support that.

[00:13:28] Speaker 05:
Or have they analyzed the whole thing wrong?

[00:13:30] Speaker 00:
Well, Your Honor, you are not bound by the Fifth Circuit.

[00:13:34] Speaker 00:
I agree with you there.

[00:13:36] Speaker 00:
We do think, and I don't agree with everything in those opinions either, but I do think they're well-reasoned, and I think the Court should

[00:13:41] Speaker 00:
should follow those authorities.

[00:13:44] Speaker 00:
I don't think a diminutive exception is the right answer either.

[00:13:49] Speaker 00:
There is no support for it in Keller.

[00:13:51] Speaker 00:
And Keller talked about this spectrum of conduct.

[00:13:53] Speaker 00:
And it might be easy for the court to pick off.

[00:13:56] Speaker 00:
At this end of the spectrum, it's regarding ethical roles, lawyer discipline.

[00:14:00] Speaker 00:
At the other end, it's the bar taking a position on a nuclear freeze, which was the issue du jour in the late 80s.

[00:14:08] Speaker 00:
But in between, the courts are going to have to make these judgment calls.

[00:14:13] Speaker 00:
Not with the associational issue.

[00:14:14] Speaker 00:
With the associational issue, it's got to be later focused on one end.

[00:14:18] Speaker 00:
If it's not directly related, it is non-germane.

[00:14:23] Speaker 00:
And one of the reasons is, as we discussed earlier, there's no way to cure it with a refund.

[00:14:29] Speaker 00:
I'm well into my rebuttal time.

[00:14:30] Speaker 06:
We'll round up to two minutes.

[00:14:33] Speaker 06:
We'll give you two minutes for rebuttal.

[00:14:34] Speaker 06:
Thank you, Your Honor.

[00:14:47] Speaker 03:
May I please the court?

[00:14:48] Speaker 03:
Michael Spencer representing Diane Gruber, Mark Reynolds, who are the appellants and were plaintiffs in this case below.

[00:14:55] Speaker 03:
While we agree with Mr. Freeman's concerns on germane-ness, we don't think that's the primary issue.

[00:15:01] Speaker 03:
The issue here is whether ORS 9.160 that requires attorneys to be members of the Oregon State Bar to be able to practice law is constitutional.

[00:15:13] Speaker 03:
Does it violate the right of freedom of association?

[00:15:17] Speaker 03:
The case law certainly clears out that you not only have a right to associate, but you have a right not to associate with entities that

[00:15:27] Speaker 03:
engage in expressive conduct.

[00:15:28] Speaker 03:
Well, obviously, the Oregon State Bar engages in expressive conduct.

[00:15:32] Speaker 03:
They publish a bulletin.

[00:15:34] Speaker 03:
It contains all sorts of things.

[00:15:36] Speaker 03:
But no, no Supreme Court case has ever looked at germanness in a Freedom of Association case to decide if the means selected by the state meets the appropriate level of scrutiny.

[00:15:52] Speaker 03:
For over 60 years, in every freedom of association case the United States Supreme Court has ever ruled on, they have held that you can infringe upon freedom of association if you have a compelling state interest and it meets appropriate judicial scrutiny.

[00:16:08] Speaker 05:
Can we back up for a second?

[00:16:09] Speaker 05:
I want to ask you similar questions that I asked your colleague.

[00:16:12] Speaker 05:
The freedom of association cases usually start with some analysis about whether you will be perceived as having a message.

[00:16:21] Speaker 05:
And I don't know where that comes in here.

[00:16:24] Speaker 05:
Who decides whether the bar, do we just decide whether a reasonable observer will think the bar is expressing the views of every single lawyer will agree?

[00:16:33] Speaker 05:
Someone has to believe that for you to have a claim?

[00:16:35] Speaker 03:
I also agree with counsel that it's not what other people view.

[00:16:40] Speaker 03:
It's what I, as an attorney, or my clients view.

[00:16:44] Speaker 03:
If the bar is going to take a political stance on something, I can be offended because the bar is doing that.

[00:16:52] Speaker 03:
But I have no means to disassociate myself.

[00:16:56] Speaker 03:
It is a personal right not to be forced to associate.

[00:17:00] Speaker 03:
It has nothing to do with what everybody else is.

[00:17:02] Speaker 03:
But remember this.

[00:17:03] Speaker 05:
Well, I mean, the Supreme Court cases, the Boy Scout case, the JCs, I mean, they talk about sort of the perception, the communicative message.

[00:17:10] Speaker 05:
Where are you getting the idea that it doesn't matter if there's a communicative message?

[00:17:13] Speaker 03:
Well, I'm saying it's a personal issue here.

[00:17:18] Speaker 03:
They're a membership organization.

[00:17:20] Speaker 03:
When the bar, in this case, attacks President Trump, when it has a political statement that they publish as their statement, who is not going to believe that that's not the statement of the Oregon State Bar, of the officers who are elected to represent the members?

[00:17:38] Speaker 05:
What if we call them licensees?

[00:17:39] Speaker 03:
Does that fix your concern?

[00:17:41] Speaker 03:
And that's totally legal, because a license is not membership.

[00:17:44] Speaker 03:
I'm not a member of the Department of Motor Vehicles because I have a motor vehicles license.

[00:17:51] Speaker 03:
The Department of Motor Vehicles does not speak for licensees.

[00:17:55] Speaker 03:
It speaks for the state of Oregon.

[00:17:57] Speaker 05:
So you would like the remedy in this case to be to

[00:17:59] Speaker 05:
order the bar to call people licensees instead of members.

[00:18:01] Speaker 03:
No, it's not what you call them.

[00:18:03] Speaker 03:
It's a matter of what the law is.

[00:18:04] Speaker 03:
The Oregon legislature needs to change it and create an entity that licenses lawyers and makes it very clear in the law that they are not members.

[00:18:13] Speaker 03:
They are licensees.

[00:18:15] Speaker 03:
That is the issue on exacting scrutiny.

[00:18:19] Speaker 03:
What does exacting scrutiny apply to?

[00:18:22] Speaker 03:
It applies to the means selected by the state to achieve its compelling state goal.

[00:18:28] Speaker 03:
It has nothing to do with the message.

[00:18:31] Speaker 03:
And that is consistent totally with Janus.

[00:18:36] Speaker 05:
So if they started everywhere that the word member appeared, they used the word licensee instead, amended it, that would solve this, right?

[00:18:43] Speaker 03:
It isn't going to matter what the bar does.

[00:18:46] Speaker 03:
The law has to change.

[00:18:47] Speaker 03:
What law?

[00:18:48] Speaker 03:
ORS 9.160 that says you must be a member.

[00:18:53] Speaker 05:
Okay, so if that law was amended to say licensee, would it?

[00:18:55] Speaker 03:
If they change that to say that the Oregon State Bar may license attorneys, different issue.

[00:19:02] Speaker 03:
Not a member.

[00:19:03] Speaker 03:
That's a huge lie.

[00:19:04] Speaker 03:
But the statute's there.

[00:19:05] Speaker 03:
The bar can't change their status.

[00:19:07] Speaker 05:
And so what if we, as a court, say, in this context, licensee and members mean the same thing?

[00:19:14] Speaker 05:
Why can't we do that?

[00:19:16] Speaker 03:
Because they are totally different.

[00:19:18] Speaker 03:
Licensees are not a member of an organization.

[00:19:22] Speaker 05:
Well, in this context.

[00:19:23] Speaker 03:
Licensees, as I say, I'm not a member of the Department of Motor Vehicles because I have a driver's license.

[00:19:28] Speaker 05:
But what if the Department of Motor Vehicles puts up a sign that says Happy Holidays?

[00:19:32] Speaker 03:
I'm sorry.

[00:19:33] Speaker 05:
The Department of Motor Vehicles puts up a sign on the window in December that says Happy Holidays.

[00:19:39] Speaker 03:
That would certainly be an issue if a state agency engages there.

[00:19:43] Speaker 03:
It's a free speech issue.

[00:19:44] Speaker 03:
It's not a freedom of association issue because I'm not a member.

[00:19:48] Speaker 03:
And that's the thing to remember about these cases as well.

[00:19:51] Speaker 03:
Keller is a freedom of speech issue.

[00:19:54] Speaker 03:
Janice was a freedom of speech issue.

[00:19:56] Speaker 03:
We're kind of working around this, but this is freedom of association.

[00:20:02] Speaker 03:
What the Department of Motor Vehicles does is not speaking on behalf of its licensees, no matter what it says.

[00:20:08] Speaker 03:
It's a state agency that speaks for the state of Oregon.

[00:20:12] Speaker 03:
It is not a membership organization.

[00:20:15] Speaker 06:
I should have asked this at the beginning.

[00:20:18] Speaker 06:
Ms.

[00:20:18] Speaker 06:
Gruber, is she still a member of the bar?

[00:20:20] Speaker 03:
She is not.

[00:20:21] Speaker 06:
But Mr. Runnels is?

[00:20:22] Speaker 03:
Yes, he is.

[00:20:23] Speaker 03:
OK.

[00:20:24] Speaker 03:
Thank you.

[00:20:26] Speaker 03:
So if you look at the case law, the first thing you have to address is the facial issue of whether or not attorneys can be required to be members of an organization to practice law.

[00:20:41] Speaker 03:
That's what's missing.

[00:20:43] Speaker 03:
That was not decided in Keller.

[00:20:46] Speaker 03:
But the key here is looking at Janus and what Janus really did, overturned ABUD.

[00:20:51] Speaker 03:
But what did it overturn in ABUD?

[00:20:53] Speaker 03:
It did not overturn the prohibition on using compelled funding to pay for speech.

[00:21:00] Speaker 03:
It overturned the requirement to have agency fees, the means selected then by that state to achieve labor peace.

[00:21:10] Speaker 03:
They didn't care about germanness.

[00:21:13] Speaker 03:
Germanness

[00:21:15] Speaker 03:
didn't have anything to do in Janus.

[00:21:18] Speaker 03:
They overturned that part of Abud that says you can do it in the first place.

[00:21:23] Speaker 03:
You don't got to look at Germaneness until you get past that and decide that, yes, this is a way that meets exacting scrutiny.

[00:21:31] Speaker 03:
Exacting scrutiny has never been applied by the United States Supreme Court.

[00:21:36] Speaker 03:
in a freedom of association, or in any case, to germaneness.

[00:21:41] Speaker 03:
They are separate issues.

[00:21:42] Speaker 03:
Germaneness just simply says, and it's only been applied in freedom of speech issues where there's compelled funding, so you cannot spend someone's money that they're compelled to pay for non-germane speech.

[00:21:55] Speaker 03:
There is no weighing of that.

[00:21:56] Speaker 03:
There is no scrutiny of that in any fashion or not.

[00:22:00] Speaker 03:
It's an absolute prohibition since Abud.

[00:22:03] Speaker 03:
It's a prohibition in Keller.

[00:22:05] Speaker 03:
You can't spend that money for that purpose.

[00:22:07] Speaker 03:
What's the remedy?

[00:22:08] Speaker 03:
Getting your portion of the money of that back.

[00:22:11] Speaker 03:
That's not a freedom of association issue.

[00:22:13] Speaker 03:
There is no scrutiny, no weighing.

[00:22:16] Speaker 03:
In exacting scrutiny, every case dealing with exacting scrutiny explains what it is.

[00:22:22] Speaker 03:
Is there a significantly less intrusive means to achieve the same result?

[00:22:28] Speaker 03:
Could the state have found an easier way to do it, a significantly less intrusive?

[00:22:32] Speaker 03:
That's exacting scrutiny.

[00:22:33] Speaker 03:
What's that got to do with germane-ness?

[00:22:35] Speaker 03:
Nothing.

[00:22:36] Speaker 03:
It has to do with the result.

[00:22:39] Speaker 03:
Every case deals with a mean selected by... So I have a question.

[00:22:43] Speaker 05:
Yes.

[00:22:43] Speaker 05:
You've sued the bar, and you say that they are not part of the state, right?

[00:22:49] Speaker 03:
We're saying that they are subject to sue.

[00:22:52] Speaker 03:
Now, we got the 11th Amendment issue out there that was dealt with.

[00:22:57] Speaker 03:
I know there's a supposed supplemental brief that has absolutely nothing to do with this judgment.

[00:23:02] Speaker 03:
It wasn't raised in this issue.

[00:23:04] Speaker 03:
It's a damages question that would come up at that stage.

[00:23:07] Speaker 05:
What I'm wondering, hearing your argument today, it seems like you're real upset.

[00:23:12] Speaker 05:
The source of your concern is a state law using the word member, not licensee.

[00:23:17] Speaker 05:
So why haven't you sued someone from the state so that we could order them to change that?

[00:23:21] Speaker 03:
Well, I don't think you could order them to change it anyway.

[00:23:24] Speaker 05:
We're suing the bar to say that the bar is the- Excuse me, can you let me answer my question?

[00:23:29] Speaker 01:
You need to wait.

[00:23:30] Speaker 03:
I'm sorry.

[00:23:32] Speaker 05:
We could tell them the law will be unconstitutional unless you change this word.

[00:23:36] Speaker 05:
You have not sued anyone from the state.

[00:23:38] Speaker 05:
It seems like you have the wrong defendant here.

[00:23:40] Speaker 05:
You're saying that the state bar can't fix this.

[00:23:42] Speaker 05:
So why is there a jurisdiction here at all?

[00:23:45] Speaker 05:
Why have you sued anyone who's proper for your claim?

[00:23:48] Speaker 03:
The state bar is the enforcement arm.

[00:23:51] Speaker 03:
We're suing to prevent them from enforcing that because it's unconstitutional.

[00:23:57] Speaker 03:
Okay.

[00:23:57] Speaker 03:
The state bar is given the authority to enforce ORS 9.160 and related.

[00:24:04] Speaker 03:
So we're suing the state bar for doing that.

[00:24:07] Speaker 03:
The state of Oregon certainly is knowledgeable.

[00:24:09] Speaker 05:
If we order them to start calling you a licensee, will that solve the problem?

[00:24:13] Speaker 03:
No.

[00:24:14] Speaker 03:
It's not what they are calling me.

[00:24:16] Speaker 03:
It's my status, not a name.

[00:24:19] Speaker 05:
But you've admitted that if the state law and the bar both use the word licensee, you wouldn't have a problem, because that's like the DMV.

[00:24:24] Speaker 03:
I don't care what the bar does, Your Honor.

[00:24:26] Speaker 03:
What the bar does is irrelevant.

[00:24:28] Speaker 03:
It's what the law says.

[00:24:29] Speaker 05:
OK, so then you've sued the wrong defendant.

[00:24:31] Speaker 03:
No.

[00:24:32] Speaker 03:
We're stopping them from enforcing a statute that's unconstitutional.

[00:24:36] Speaker 03:
That's what this case is about.

[00:24:40] Speaker 03:
They're the enforcement arm.

[00:24:42] Speaker 03:
And if the state of Oregon, the legislature, wants to be able to

[00:24:48] Speaker 03:
regulate the practice of law differently than if you find it unconstitutional, then the legislature needs to change the law.

[00:24:57] Speaker 03:
But that's up to the legislature to do.

[00:24:58] Speaker 03:
You can't change the law for them.

[00:25:02] Speaker 03:
If they can't enforce it, then they're going to have to make a decision what they're going to do, or they just don't have an enforceable law.

[00:25:09] Speaker 06:
All right.

[00:25:10] Speaker 06:
Thank you very much.

[00:25:10] Speaker 06:
Thank you.

[00:25:24] Speaker 02:
Good morning, Your Honors, and may it please the court, Stephen Wilker on behalf of the Oregon State Bar and the officers of the bar who are named as defendants in their official capacities.

[00:25:34] Speaker 02:
Before I get into the meat of the argument, I just want to give a little roadmap.

[00:25:38] Speaker 02:
Because we're working together, counsel and I have tried to divide up subject matter a little bit as opposed to sticking exclusively within each case.

[00:25:48] Speaker 02:
I'm going to talk a bit about the standard, whether it's

[00:25:51] Speaker 02:
drawn from Keller or Janice and the relevance of each.

[00:25:55] Speaker 02:
I'm also going to talk about the last issue that was a discussion with counsel for the Gruber plaintiffs, which is the immunity issue, because I do think that's important.

[00:26:05] Speaker 02:
My co-counsel will talk about the application of

[00:26:09] Speaker 02:
the appropriate standard, particularly in the Crow case.

[00:26:13] Speaker 02:
Because in the Crow case, we have more of an as-applied challenge based on specific activities that are alleged to have been non-germane.

[00:26:22] Speaker 02:
And also about the issue of the quantum of the activities necessary to determine if there's been a violation of a plaintiff's constitutional right here.

[00:26:35] Speaker 02:
I want to start with the standard.

[00:26:36] Speaker 02:
The through line from Keller.

[00:26:39] Speaker 02:
and going back to Lathrop, is Germaneness.

[00:26:43] Speaker 02:
And this court in Crowe said, the question is whether or not a lawyer can be compelled to join an organization that engages in non-Germane activities.

[00:26:58] Speaker 02:
Not can they be compelled to join the organization.

[00:27:01] Speaker 02:
And I think the argument that the Gruber plaintiffs are making is a facial challenge to membership qua membership.

[00:27:08] Speaker 02:
And every court, frankly, the Fifth Circuit and McDonald and Mudrow reject that argument.

[00:27:14] Speaker 02:
We think they've gone way too far in other parts of the decision, but they too recognize that the question is about

[00:27:20] Speaker 02:
Germaneness.

[00:27:21] Speaker 02:
And Germaneness sets the standard because whether or not, however you phrase or use the word exacting scrutiny, the courts told us, Keller courts told us that the bar has a compelling interest in regulating lawyers and improving the administration of justice.

[00:27:39] Speaker 05:
It doesn't- What is the interest though in calling them members instead of licensees?

[00:27:43] Speaker 05:
I'm sorry, what is the- What is the interest in calling them members instead of licensees?

[00:27:47] Speaker 02:
I don't know that there is a particular interest other than that members, I'll use the phrase small m, that practicing lawyers are often referred to as members of the bar.

[00:27:58] Speaker 02:
It's a phrase.

[00:27:59] Speaker 02:
No one assumes, as you pointed out, that a member of the bar association, that the state bar association speaks for all of the folks who are

[00:28:10] Speaker 05:
small and members of the bar or any case of oregon what is that a question of fact or a question of law i mean can we just feet decide ourselves that no one thinks that it seems like the plaintiffs somehow think that

[00:28:22] Speaker 02:
But the plaintiffs, particularly in Gruber, but also in, and Ms.

[00:28:28] Speaker 02:
Assai will deal with this in more detail in Crow, haven't alleged or pointed to any associational harm from actually being called members.

[00:28:36] Speaker 05:
Well, they seem to have thought it was worth suing you about it.

[00:28:38] Speaker 05:
I mean, they seem upset.

[00:28:39] Speaker 05:
So maybe we have to say that's not reasonable, or we have to say something.

[00:28:44] Speaker 05:
Is it a jury question, whether that's reasonable?

[00:28:46] Speaker 05:
How do we decide that?

[00:28:47] Speaker 02:
I think first there has to be some evidence of it, and there wasn't here.

[00:28:51] Speaker 02:
And Ms.

[00:28:52] Speaker 02:
Asai will talk about that record.

[00:28:53] Speaker 02:
The Gruber plaintiffs aren't even making that argument because they've disavowed any intention to point to specific activities.

[00:29:01] Speaker 02:
The summary judgment record was bare of any evidence of specific activities by the bar that the Gruber plaintiffs were complaining about.

[00:29:10] Speaker 02:
And so I'll leave on the Crow plaintiffs on that record.

[00:29:12] Speaker 02:
I'm going to leave that to Mrs. Tsai to respond if that's OK, because she's much more familiar with that record than I am.

[00:29:18] Speaker 02:
But I will tell you that in Gruber, they've disavowed it.

[00:29:22] Speaker 02:
In fact, they took any reference to the challenge statements that were published in the bar bulletin out of their second amended complaint.

[00:29:29] Speaker 05:
So are you saying it's a fact question?

[00:29:31] Speaker 05:
And so because they haven't put in a declaration, they lose on the fact question?

[00:29:35] Speaker 05:
Or do you think it's a legal question?

[00:29:36] Speaker 05:
I think that's a question about the standard, so maybe you can answer it.

[00:29:39] Speaker 02:
I do think it's a legal question, but even if you disagree and think it's a fact question, there has to be some factual evidence to support it.

[00:29:45] Speaker 02:
There has to be some claim that apart from I just don't like what you're doing to establish how there's an associational harm, as the court has described it, from being

[00:29:57] Speaker 02:
considered to be a member of an organization.

[00:30:00] Speaker 02:
And I think the court's point earlier today was quite relevant, which is if everyone has to be a member, how is there associational harm?

[00:30:08] Speaker 02:
How is anybody attributing what that organization does?

[00:30:12] Speaker 02:
I do think it's important, and it goes back to

[00:30:15] Speaker 02:
The Oregon State Bar is a state instrumentality.

[00:30:18] Speaker 02:
This is not a union shop.

[00:30:19] Speaker 02:
This is not a question of joining a private union, joining a private organization.

[00:30:24] Speaker 02:
The State Bar Association is fundamentally different.

[00:30:28] Speaker 02:
It's an instrumentality of the state.

[00:30:30] Speaker 02:
It's established by statute.

[00:30:33] Speaker 02:
The requirement to pay dues and be a member is established by statute.

[00:30:39] Speaker 02:
And it's an agency of the state for many purposes.

[00:30:44] Speaker 02:
It's an agency of the state for purposes of public records law.

[00:30:48] Speaker 02:
It's an agency of the state for purposes of public meetings law and ethics law.

[00:30:52] Speaker 02:
It is a state regulatory agency.

[00:30:55] Speaker 02:
It serves a function under the supervision and control of the judicial department in the state of Oregon.

[00:31:02] Speaker 02:
This is not a private entity.

[00:31:04] Speaker 02:
This is a fundamentally different organization than was addressed in Janus.

[00:31:10] Speaker 05:
There's less control here, though, than there was in California for Cone, right?

[00:31:15] Speaker 02:
There is less control, Your Honor.

[00:31:17] Speaker 02:
There can be no doubt about that.

[00:31:18] Speaker 02:
But there's still ultimate control in the legislature's establishment of the organization, establishment of the requirements for service in a governed role, and resolving disputes regarding who are

[00:31:31] Speaker 02:
who can or cannot be a governor.

[00:31:33] Speaker 02:
And ultimately, that control is sufficient, because ultimately, if the legislature decides tomorrow that it wants a different structure, it can change that.

[00:31:43] Speaker 02:
This isn't a private organization that solely governs itself.

[00:31:47] Speaker 02:
It's established.

[00:31:48] Speaker 02:
It's a creature of statute and instrumentality of the state.

[00:31:52] Speaker 02:
Many of its functions are subject to the control and supervision of the Supreme Court.

[00:31:56] Speaker 02:
And so all of those factors point to it being the state, and this is under cone, this is an immunity question.

[00:32:07] Speaker 02:
And immunity matters here.

[00:32:08] Speaker 05:
There's also less of an impact on the state budget because the fees are what pay for the Oregon bar, right?

[00:32:15] Speaker 02:
there may be less of an impact or direct impact.

[00:32:19] Speaker 02:
But because of the important regulatory functions that the bar performs, if the courts were to say it's not immune and would be forced to pay damages or refund, all of a sudden now you've got this important state function that doesn't have a source of revenue to support it.

[00:32:38] Speaker 02:
So as this court in other cases has said, when there is an important function and it could tip in that direction,

[00:32:45] Speaker 02:
The treasury element can be satisfied even if there's no direct impact on the treasury of the state.

[00:32:55] Speaker 02:
And I also want to point out, and Cohn was very clear about two things.

[00:32:59] Speaker 02:
One, this is an entity determination.

[00:33:01] Speaker 02:
It's not based on specific activities.

[00:33:04] Speaker 02:
That's a change or a clarification that Cohn was clear about.

[00:33:08] Speaker 02:
Is the Oregon State Bar a state entity entitled to immunity?

[00:33:13] Speaker 02:
as an entity.

[00:33:15] Speaker 02:
And two, that the dignity interests of the state in selecting and creating the agency should be respected and given that respect.

[00:33:25] Speaker 02:
And that's equally important to the Treasury impact, which is divergent from the prior standard that this court used in Mitchell and which the panel in Crow One applied and held differently.

[00:33:39] Speaker 02:
We raise it because it's important, because these plaintiffs aren't just asking for injunctive relief.

[00:33:46] Speaker 02:
They're asking for money.

[00:33:48] Speaker 02:
They're asking for money back from the bar.

[00:33:49] Speaker 02:
In fact, the Gruber plaintiffs were asking for damages for things like CLE and PLF.

[00:33:56] Speaker 02:
They're asking for real dollars from the bar, and the bar is the state for these purposes.

[00:34:01] Speaker 02:
It's established by the state.

[00:34:02] Speaker 05:
But that money would come from the bar fees, not from taxes to the state.

[00:34:06] Speaker 02:
It might initially, but if that money comes from it, then the state needs to go back to the legislature and say, please fund our regulatory function that we serve and admission and discipline.

[00:34:16] Speaker 02:
Those are in core regulatory functions that apply for lawyers.

[00:34:20] Speaker 02:
The state has chosen and it's in the state bar act.

[00:34:23] Speaker 02:
This isn't

[00:34:25] Speaker 02:
This isn't a private organization.

[00:34:27] Speaker 02:
This is this Oregon State Bar established by statute funded by statute funded by appropriations from the legislature Wait, I thought it was funded by fees But it's it's all the monies that the Oregon State Bar are funded by appropriations from the legislature those fees are appropriated to the legislature they may Come from the fees that are paid

[00:34:47] Speaker 02:
But there are funds for the legal services program that are direct appropriations.

[00:34:52] Speaker 05:
I understand the legal services program is separate, but all of the other functions I thought were coming from fees.

[00:34:56] Speaker 02:
They come from fees initially, but as this court has noted in other context, if that fee money isn't permitted, the state will then have to step in and fulfill the regulatory function and incur those functions.

[00:35:08] Speaker 02:
And that's enough of an impact on the Treasury to support the finding that this is a state entity under con.

[00:35:14] Speaker 06:
Council, can you remind me, the record that we're talking about right now about how things are paid for and who pays for what and fees, is this just based on your common knowledge or were there actually declarations put into the district court explaining all of this?

[00:35:26] Speaker 02:
There were, ultimately, part of the record, this record was created in CRO 1 or in the

[00:35:33] Speaker 02:
district court record that went up to the court in Call 1 and is part of the ultimate record.

[00:35:38] Speaker 02:
Because these issues were just addressed by supplemental briefing in this court post-cone, it's not directly in the excerpts or records or the materials that were submitted with this appeal, but they are of record in the district court action.

[00:35:52] Speaker 06:
All right, so what you're talking about is somewhere in the record.

[00:35:55] Speaker 02:
I believe so.

[00:35:55] Speaker 06:
It's not just pulling stuff from Wikipedia or something like that.

[00:35:58] Speaker 02:
I believe so, and it's a matter of statute, like there are statutes that reference these items.

[00:36:03] Speaker 02:
I want to just go back to this notion of Germaneness.

[00:36:10] Speaker 02:
McDonald and Boudreaux essentially set up a system where you couldn't possibly survive.

[00:36:17] Speaker 02:
Under Boudreaux, any misstep and the bar is doomed.

[00:36:22] Speaker 02:
If that doesn't make sense in the grand picture, and it certainly doesn't make sense under Keller, because Keller expressly permitted bars to engage in non-Germane conduct as long as they didn't subsidize it, as long as it wasn't subsidized by fees.

[00:36:39] Speaker 02:
And so the question is,

[00:36:41] Speaker 02:
If you go beyond that and you say, a bar that engages in any one or more activities that doesn't qualify as germane, somehow from that day forward that bar can't exist.

[00:36:53] Speaker 02:
That's the argument they're making.

[00:36:55] Speaker 02:
And that's really the argument that Boudreaux accepted.

[00:36:58] Speaker 02:
And with all due respect, Boudreaux is a step too far in that regard.

[00:37:03] Speaker 01:
So what do you think the remedy is then?

[00:37:06] Speaker 01:
for non-German conduct that doesn't have the draconian consequences of McDonald and so forth?

[00:37:13] Speaker 02:
I think if there were finding a violation, it could be potentially a declaration that the bar had gone a step too far, that the officers had gone a step too far.

[00:37:25] Speaker 02:
And maybe the remedy is to tell them not to and expect that as a state actor, as a governmental actor, that they'll respect the boundaries that the court has established.

[00:37:39] Speaker 02:
All right, thank you.

[00:37:39] Speaker 02:
That I'll turn the podium over.

[00:37:41] Speaker 02:
Thank you, Your Honors.

[00:37:57] Speaker 04:
May it please the court, Kristin Assai, also representing the Oregon State Bar and the co-defendants who are the appellees in this case.

[00:38:06] Speaker 04:
As Mr. Wilker just described, the district court correctly relied upon the Keller Germanist standard in assessing the plaintiff's free association claim.

[00:38:17] Speaker 04:
I'm here to explain why the district court also correctly applied the Keller standard

[00:38:23] Speaker 04:
to the challenged activities in granting summary judgment to the bar.

[00:38:27] Speaker 04:
There are two main issues I want to discuss.

[00:38:30] Speaker 04:
First, why each of the challenged activities are germane under the broad spectrum set forth in Keller.

[00:38:37] Speaker 04:
And secondly,

[00:38:38] Speaker 04:
why the district court was also correct in finding that even if one or two statements or one or two activities were non-germane, that the plaintiffs had failed to establish an associational injury and therefore summary judgment was also proper.

[00:38:55] Speaker 04:
Based on the questions earlier, I'd like to start with the second issue.

[00:38:58] Speaker 05:
Actually, can I have you start with the first issue?

[00:39:00] Speaker 05:
So I don't understand how the district court was really permitted to do what it did on remand, because I read CRO 1 from our court as holding that some of this speech was not germane.

[00:39:16] Speaker 05:
And that was the premise on which it was not controlled by earlier case law.

[00:39:21] Speaker 05:
And that's why they said the case could go forward.

[00:39:24] Speaker 05:
So it seems like we have law of the case as I read it.

[00:39:27] Speaker 05:
We're bound as I read it by the earlier determination that probably the bar statement, because that's the one that Crowe focused on, was not germane.

[00:39:36] Speaker 04:
My reading of Crow One was that the Ninth Circuit panel remanded in finding that there was, at least with respect to free speech, the court said it didn't matter whether it was germane or non-germane, but that there was at least an open question about whether the two bar statements, the statements in the April 2018 bar bulletin, were germane, that they hadn't made a determination of germane-ness

[00:40:03] Speaker 04:
in Crow One.

[00:40:04] Speaker 05:
But the court said that the complaint stated a claim for the freedom of association claim.

[00:40:10] Speaker 05:
I think.

[00:40:10] Speaker 05:
I mean, it's a little hard to understand, and there are different statements along the way.

[00:40:14] Speaker 05:
But it seems like our court said the reason it's not bound by the earlier cases that all assumed all the speech was germane is because this bar statement is not germane.

[00:40:23] Speaker 05:
And also, this complaint states a claim for a freedom of association.

[00:40:26] Speaker 05:
And the only way I can make sense of that is to think that they are saying,

[00:40:30] Speaker 05:
Or at least might, like it may not because maybe on the later steps of the analysis it'll fail.

[00:40:35] Speaker 05:
But I think they're saying that this bar statement about Trump was not germane and therefore this is outside of the earlier case law.

[00:40:46] Speaker 04:
That is a possible reading for sure of CRO 1, but it is equally plausible that that panel said, we're not going to touch the germaneness issue.

[00:40:56] Speaker 04:
We believe that with respect to free speech, the statements could be germane and there would still not be a First Amendment injury.

[00:41:03] Speaker 04:
But that because it was at the motion to dismiss stage, remanded it back to give an opportunity for the plaintiffs

[00:41:10] Speaker 04:
to take discovery to determine whether those were in fact germane under Keller and perhaps other activities.

[00:41:17] Speaker 05:
OK, but so you're now saying germane-ness is a question of fact?

[00:41:21] Speaker 05:
We can't decide whether something is germane ourselves?

[00:41:25] Speaker 05:
It has to go to a jury?

[00:41:27] Speaker 04:
No.

[00:41:28] Speaker 04:
Germane-ness is an issue of law for the court to decide.

[00:41:31] Speaker 05:
OK, so why do you need discovery?

[00:41:33] Speaker 04:
The earlier Crow One panel decided that that was an issue for discovery.

[00:41:39] Speaker 05:
Does that make sense as a way to read what they did?

[00:41:49] Speaker 04:
But whatever happened, it was remanded.

[00:41:52] Speaker 04:
The parties took discovery with respect to were there any activities that the plaintiffs contended were non-germane.

[00:42:00] Speaker 04:
And then on that record, it was presented to the district court at summary judgment.

[00:42:05] Speaker 04:
And it ended up being only the two April 2018 bar statements and then the legislative activities that were added to the case after the remand.

[00:42:15] Speaker 05:
But if we think that the bar statements themselves, I mean, I think Crow One already said it, but if we think the bar statements themselves are not germane, it would seem like we don't even need to worry about the legislative statements.

[00:42:26] Speaker 05:
I mean, I guess you're going to say, well, you need more than de minimis, but let's put that aside for a second.

[00:42:30] Speaker 05:
Do we have non-germane speech just based on the bar statements?

[00:42:34] Speaker 04:
No.

[00:42:34] Speaker 04:
The bar statements are germane because what Keller said is that the standard is whether the activities are necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services within the state.

[00:42:53] Speaker 04:
What Keller said was outside was purely political speech with no relationship to those two compelling state interests.

[00:43:02] Speaker 04:
And even though with respect to the affinity bar statement as we described it in our briefing, the statement that was not by the bar itself but by the voluntary affinity bars has political speech in it, it does have a criticism of former President Trump and some of his statements and actions.

[00:43:19] Speaker 04:
But when read in the entire context, it is clear that the intent of those voluntary bar leaders was to be standing up against injustice and race-based violence or discrimination that members of the bar, the legal profession,

[00:43:37] Speaker 04:
bar attorneys from underrepresented backgrounds were experiencing and what those affinity bar leaders said we will not tolerate this we understand our role in the legal profession and we're condemning these race-based

[00:43:52] Speaker 04:
discriminatory speech.

[00:43:54] Speaker 06:
But, counsel, I could see a bar in a different state say having a very different perspective and talk about immigration.

[00:44:03] Speaker 06:
And they could talk about how President Biden is ruining our country because of all this immigration stuff, which, I mean, you hear this kind of stuff online all the time.

[00:44:11] Speaker 06:
Are you saying that that would fall within color as well?

[00:44:14] Speaker 04:
I think it would depend on the record presented to the court on what the specific statements were.

[00:44:20] Speaker 06:
But you think it could?

[00:44:22] Speaker 04:
I think it could potentially be germane if the statement was related to one of the compelling state interests, because what Keller said is not only necessary to the regulation or necessary to the improvement of legal services, but also reasonably related.

[00:44:39] Speaker 04:
So if the purpose of putting out the statement was for improving the quality of legal services, perhaps.

[00:44:46] Speaker 04:
But in this case, what we can see on this record is the

[00:44:49] Speaker 04:
undisputed, unrebutted testimony of the CEO of the Oregon State Bar was that these two statements were published because the bar had received complaints and concerns from members of the bar with underrepresented backgrounds who were experiencing discrimination within the legal profession.

[00:45:08] Speaker 04:
So yes, the statement that is political

[00:45:12] Speaker 04:
Probably, I'm fairly confident the bar would not do that again.

[00:45:15] Speaker 04:
And they've said that.

[00:45:17] Speaker 04:
It didn't go through the normal Keller vetting standard.

[00:45:20] Speaker 04:
But it still falls within Keller because it is reasonably related to the purpose of improving the quality of legal services.

[00:45:28] Speaker 04:
And even the Fifth Circuit and the Tenth Circuit have said that access to justice

[00:45:33] Speaker 04:
diversity initiatives are within the permissible Keller purposes.

[00:45:38] Speaker 06:
Let's say for a moment I'll speak for myself and say I disagree with you on that and I say I look at this and I say well you know what I just think this is non-germane.

[00:45:46] Speaker 06:
Where are we in this case?

[00:45:48] Speaker 04:
Then we turn to the second question which is does that single statement

[00:45:53] Speaker 04:
rise the level of a First Amendment violation.

[00:45:57] Speaker 04:
And to Judge Friedland's questions earlier, I would say no.

[00:46:00] Speaker 04:
And the district court was correct in finding that consistent with Lathrop, there is some threshold that must be passed in order for

[00:46:10] Speaker 04:
a mandatory bar's expressive or political statements to become an infringement upon the bar member's expressive rights.

[00:46:22] Speaker 05:
And we know that because each of- So I have to take you back to Crow One on that, because I know you want us to read Lathrop that way, but I don't think Crow One read Lathrop that way.

[00:46:30] Speaker 05:
Crow One said that Lathrop was only germane speech.

[00:46:35] Speaker 04:
Correct.

[00:46:36] Speaker 04:
Looking at Lathrop, under the specific legislative activities that were at issue, if you take, for example, what the Plaintiffs' Council in this case are describing as germane, many of those activities would fall outside.

[00:46:52] Speaker 05:
Right, I agree.

[00:46:54] Speaker 05:
But for whatever reason, Crow One, which I think we're bound by, said, we read Lathrop as treating all the speeches germane.

[00:47:02] Speaker 05:
So once they have said that, I don't know how you can use Lathrop to answer Judge Owen's question, let's assume there's not germane.

[00:47:08] Speaker 05:
Because they have said that's not what Lathrop's about.

[00:47:12] Speaker 04:
Yes, but what Crowan also did was split between the speech and association in finding that there was no First Amendment violation, even if both of these bar statements were non-Germane, therefore expecting that there would be some amount of permissible non-Germane conduct.

[00:47:34] Speaker 04:
plaintiffs are arguing, which is that any non-Germane conduct equals the bar is unconstitutional as a integrated bar, then there would be no need to split those claims or to at least say, we can assume that some of it conduct is non-Germane, but still no First Amendment injury.

[00:47:54] Speaker 05:
Well, I think they, you're talking about what Crowe 1 did.

[00:47:57] Speaker 04:
Yes.

[00:47:58] Speaker 05:
I mean, I think Crowe 1 thought some of the speech is not germane, but maybe there's a further analysis, like would anyone attribute it to a member?

[00:48:07] Speaker 05:
Or do they people reasonably think they're licensees who don't believe it anyway, so there's no associational right?

[00:48:12] Speaker 05:
That would answer the association claim while still assuming that some of the speech is not germane.

[00:48:16] Speaker 04:
Yes, I agree with that, Your Honor.

[00:48:18] Speaker 04:
And that is one of the other issues that we raised at summary judgment was that there is no evidence in the record of any attribution, at least of the, particularly with respect to the affinity bar statement as being the one that is particularly challenged and having political speech in it.

[00:48:34] Speaker 05:
Okay, so when you talk about evidence in the record, you're again sounding like it's a question of fact.

[00:48:38] Speaker 05:
But is it a question of law, whether anyone reasonably thinks that membership in this context means attribution of opinion, or is it a question of fact?

[00:48:47] Speaker 05:
Do we need to survey the people of Oregon to see whether they think all the members of the bar agree with the statements of the bar?

[00:48:53] Speaker 04:
No, but there are two things.

[00:48:55] Speaker 04:
This court can look at the context of these statements themselves and read that they have, with the bar statement, it has a disclaimer saying we recognize that there's a diversity of viewpoints on behalf of the bar.

[00:49:09] Speaker 04:
And then with respect to the affinity bar statement, it clearly says that this is the opinion of these voluntary bar associations.

[00:49:16] Speaker 04:
No attribution to the broader membership of the Oregon State Farm.

[00:49:20] Speaker 05:
And so can we just look at that and say no one would reasonably attribute this to the members or is it you were talking about there's no evidence in the record?

[00:49:27] Speaker 05:
Do we need to have more evidence of what people think?

[00:49:31] Speaker 04:
I think you can look at that statement on its own and say, as a matter of law, there is no attribution.

[00:49:36] Speaker 04:
But what the district court did as well is that there was a record, and plaintiffs had the opportunity to present any evidence of an associational injury, and there was nothing.

[00:49:46] Speaker 04:
And the two cases this court can look to on that are Lathrop and Morrow from this court, where this court took a very similar free association claim

[00:49:58] Speaker 04:
reformulated it because the plaintiff had not established or even pled an injury aside from the payment of fees.

[00:50:06] Speaker 04:
The mandatory bar membership's association was purely a fee-based association, not that they were forced to attend meetings, they were forced to

[00:50:15] Speaker 04:
ascribed to a belief system, they were forced to say anything.

[00:50:18] Speaker 04:
That's the same thing that is on this present record.

[00:50:20] Speaker 06:
And just so counsel, just so I'm clear, looking at the statement by the bar, not the affinity groups, by the bar, third paragraph, first sentence, it reads, as a unified bar, we are mindful of the breadth of perspectives encompassed in our membership.

[00:50:36] Speaker 06:
That's the sentence you're pointing to, to say the bar was saying not everyone necessarily agrees with us.

[00:50:40] Speaker 01:
Yes.

[00:50:42] Speaker 01:
What happens if we disagree with this argument and find that the statements weren't germane and that the associational rights of the plaintiffs were violated?

[00:50:55] Speaker 01:
Do you have any thoughts with respect to what the appropriate remedy would be or the result, anything that we should be thinking about?

[00:51:06] Speaker 04:
Your Honor, I'd say I'm out of time.

[00:51:07] Speaker 04:
May I answer your question?

[00:51:11] Speaker 04:
If this court were to find that both there is non-germane conduct that crosses the threshold to constitute a associational injury to the plaintiffs, then this case should be at least remanded to the district court to make determination of what the remedy should be.

[00:51:28] Speaker 04:
There's been nothing so far in the record of that, especially because of the breadth of the injunctive relief that the plaintiffs have pled in their complaint.

[00:51:36] Speaker 04:
There should be an opportunity to look at that further.

[00:51:39] Speaker 04:
And as Mr. Wilkush said, the Oregon State Bar as a state entity has tried to stay within the bounds.

[00:51:45] Speaker 04:
And if this court were to declare that Keller is more limited than its prior understanding, then it would comply with that.

[00:51:55] Speaker 06:
It seems to me a disclaimer going forward, a retroactive and prospective disclaimer saying statements like this do not necessarily reflect

[00:52:05] Speaker 06:
the membership or the views of the members of the Oregon Bar.

[00:52:08] Speaker 06:
Something stronger than that first sentence in paragraph three.

[00:52:11] Speaker 04:
Yes, Your Honor.

[00:52:12] Speaker 04:
And a bar has already started doing that, at least with respect to its bar bulletin, but that is not in the record before you today because that was not at the summary judgment record.

[00:52:21] Speaker 05:
So the bar would have no objection to us saying you should always have a disclaimer when you're talking about things beyond CLE credit.

[00:52:30] Speaker 04:
I would assume no, because the bar really wants to comply with the Constitution and has been a Keller Pier bar by design from ever since that decision.

[00:52:43] Speaker 04:
If there are no further questions?

[00:52:44] Speaker 05:
Can I ask a question about Morrow?

[00:52:46] Speaker 05:
So, I mean, Morrow says, plaintiffs complain that by virtue of their mandatory state bar membership, they are associated in the public eye with viewpoints they do not in fact hold.

[00:52:57] Speaker 05:
Do you think that what Mauro did was basically say, OK, plaintiffs complain about that, but that's not reasonable.

[00:53:03] Speaker 05:
And that's why Mauro got to the result it did.

[00:53:07] Speaker 04:
Yes.

[00:53:07] Speaker 04:
Because that was at the motion to dismiss stage, they at least said, you have not pled that, and you have not given a reasonable way for the court to infer that you would be attributed to those statements.

[00:53:22] Speaker 06:
All right.

[00:53:22] Speaker 06:
Thank you.

[00:53:23] Speaker 04:
Thank you, Your Honors.

[00:53:24] Speaker 06:
Mr. Freeman.

[00:53:33] Speaker 00:
Your Honor, Mr. Crowe could cry from the hilltops, I don't agree with what the bar says.

[00:53:39] Speaker 00:
I disassociate myself with the bar.

[00:53:42] Speaker 00:
He could do that all he wants, just like the plaintiff and Janice could.

[00:53:46] Speaker 00:
But like in Janice, that doesn't cure the associational injury.

[00:53:49] Speaker 00:
He's not free to quit the bar association and continue to practice law.

[00:53:55] Speaker 00:
The statement in the bar journal

[00:53:58] Speaker 00:
was one of these, as Keller described it, a good world type statement.

[00:54:04] Speaker 00:
It wasn't about there are lawyers engaging in white supremacy and violence and racism.

[00:54:13] Speaker 00:
And that's a problem.

[00:54:14] Speaker 00:
This is a problem at large.

[00:54:17] Speaker 00:
And furthermore, it went on to attribute that to President Trump and his supporters.

[00:54:21] Speaker 00:
That is non-Germane conduct, and that is

[00:54:24] Speaker 00:
seriously upset the plaintiffs and other members of the bar.

[00:54:31] Speaker 00:
At some parallel, I'd go back to the licensee versus member discussion.

[00:54:36] Speaker 00:
The Oregon Supreme Court has the ultimate authority to license lawyers.

[00:54:41] Speaker 00:
They can do that directly.

[00:54:43] Speaker 00:
And if that's what they want to do, that's fine.

[00:54:45] Speaker 00:
But there is this whole other trade association type apparatus called the state bar, which I guess would be comprised of all licensees to practice law in

[00:54:57] Speaker 00:
Similarly, the Oregon Supreme Court can directly discipline lawyers and do that in its own way.

[00:55:05] Speaker 00:
There is this whole other trapping, though, that is unnecessary.

[00:55:08] Speaker 00:
In the cone case on the immunity issue, that's one of the things, that's one of the ways the California bar and their briefing distinguish themselves from the Oregon bar.

[00:55:17] Speaker 00:
They said Oregon Bar has the full complement of trade association-type trappings, has significant autonomy to run its own affairs, elects its own members, can change its own bylaws, isn't responsible for any debts.

[00:55:31] Speaker 00:
They're not debts of the state of Oregon.

[00:55:33] Speaker 00:
They're their own debts.

[00:55:34] Speaker 00:
And that makes them different, and I've ran out of time.

[00:55:37] Speaker 06:
Anything further?

[00:55:39] Speaker 06:
All right.

[00:55:39] Speaker 06:
Thank you very much, counsel.

[00:55:40] Speaker 06:
Thank you very much for your argument, your briefing, and this very, very interesting case.

[00:55:45] Speaker 06:
This matter is submitted.