Support for Oregon State Bar’s Publication of Statements Condemning Racism and White Nationalism

Dear Board of Governors,

The Portland Chapter of the National Lawyers Guild expresses full and unequivocal support for the condemnation of racism and white nationalism expressed in two statements published in the Oregon State Bar’s April 2018 Bar Bulletin. Our chapter is committed to confronting racist ideologies and policies everywhere, from the White House to local fascists and Neo-Nazis who seek to increase their power in Oregon. Furthermore, we are committed to rooting out the structural and institutional racism that permeates our society.

The Bar’s own statement condemned the growth of racism and white nationalism in the United States. Several of Oregon’s Specialty Bar Associations, representing diverse communities within Oregon’s legal profession, authored and signed the second statement. This letter identified President Donald Trump as a source of the expansion and legitimization of racism in the United States and cited to the President’s published statements about people of color and immigrants and his executive order that halted refugee admissions and immigration from seven Muslim-majority countries. The letter stated that it was “in support of” the Bar’s own statement, offered its own analysis of the issue, and was endorsed separately by seven different voluntary bar associations.

The Bar Bulletin solicits articles from attorneys and non-attorneys “on a wide variety of subjects, and favor such topics as access to justice, legal funding, judicial independence, diversity in the profession, professionalism and future trends.”[1] Thus, the Bar Bulletin is not, and cannot be perceived to be, speaking for all members of the Oregon State Bar. This is especially the case with regard to statements specifically signed by other, voluntary bar associations in the state. As a result, the Specialty Bar Associations’ statement does not impinge the First Amendment rights of the bantam group of attorneys who claimed to take offense. See Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d 1032, 1038 (9th Cir. 1999) (upholding student fee funding for a campus organization in part because the organization did not, and was not perceived to be, speaking for all students).

We are therefore appalled that, in response to less than 20 attorneys who have complained, the Board of Governors has refunded bar dues attributable to the publication of the Specialty Bar Associations’ statement. This small group’s demand for the return of their entire annual dues and threatening of legal action is outrageous. We are concerned their actions will ultimately chill efforts to speak out on important issues facing our profession, including access to justice and the rule of law, at a time when such efforts are most necessary.

It is well-established that the regulatory function of a state bar justifies compelled membership.  Morrow v. State Bar, 188 F.3d 1174, 1177 (9th Cir. 1999) (citing Lathrop v. Donohue, 367 U.S. 820 (1961)). Moreover, under the Supreme Court’s decision in Keller v. State Bar of California, the use of mandatory state bar dues does not violate the First Amendment rights of its members if “the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or ‘improving the quality of the legal service available to the people of the State.’” 496 U.S. 1, 14 (1990). This “germaneness doctrine . . . does not silence organizational speech; rather, it requires only that ideological activities not germane to an organization’s purpose be funded through sources other than compulsory fees.” Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d 1032, 1037 (9th Cir. 1999) (emphasis supplied). Thus, “[w]hat what Keller found objectionable was not political activity but partisan political activity as well as ideological campaigns unrelated to the bar’s purpose.” Gardner v. State Bar, 284 F.3d 1040, 1043 (9th Cir. 2002) (emphasis supplied).

According to its by-laws, the Oregon State Bar acts to “to serve justice by promoting respect for the rule of law, by improving the quality of legal services and by increasing access to justice.”[2] Toward that end, the Bar serves several functions, including: 1) promoting high standards of honor, integrity, professional conduct, professional competence, learning and public service among the members of the legal profession; 2) seeking to ensure the fair administration of justice for all; 3) helping lawyers serve a diverse community and 4) advocating for access to justice.”[3]

The statements in the April 2018 Bar Bulletin — both from the Bar itself and the Specialty Bar Associations — are ideological in their condemnation of white nationalism and violence; this is entirely germane to the Bar’s stated purposes. To the extent the Specialty Bar Associations mentioned Trump by name, that viewpoint helps all lawyers better understand how the people most directly affected by the President’s behavior perceive it. Such understanding improves the quality of legal services that we provide in a diverse community.

In the April 2018 Bar Bulletin, the Oregon State Bar proclaimed, “we are intent on standing in support and solidarity with those historically marginalized underrepresented and vulnerable communities who feel voiceless within the Oregon legal system.”[4] Sadly, the Board of Governors’ decision to refund the dues attributable to the publication of the Specialty Bar Associations’ statement has reneged on this commitment.

For a Better World,

National Lawyers Guild

Portland, Oregon Chapter

[1] Oregon State Bar Bulletin, “Be an Author,” April 2018 at 17.

[2] Oregon State Bar Bylaws, Article 1.2, available at: https://www.osbar.org/_docs/rulesregs/bylaws.pdf.

[3] Id.

[4] Oregon State Bar Bulletin, “Statement on White Nationalism and Normalization of Violence,” April 2018 at 42.

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