Federal case law summary: First Amendment, compelled speech.

Kingstad v. State Bar of Wisconsin. 7th Circuit First Amendment

Wisconsin requires, as a condition to practice law in the state, membership in the Wisconsin State Bar and payment of bar dues. Certain activities may not be funded by compulsory dues, and State Bar publishes notice of activities that are instead subject to voluntary dues. State Bar conducted public image campaign, and allocated the cost as part of members' compulsory dues. The campaign included television spots showing lawyers improving lives of senior citizens, participating in elementary and high school mock trials, volunteering at legal clinics, and supporting food pantries. The slogan of the campaign was "Wisconsin Lawyers. Expert Advisors. Serving You."

Plaintiffs objected, and arbitrator ruled that campaign was properly subject to compulsory dues, finding that the campaign was neither political nor ideological. Arbitrator ruled that germaneness was not relevant to the inquiry. Plaintiffs sought judicial review, and defendant State Bar removed the action to the U.S. District Court, since the claim arose under the U.S. Constitution. District Court affirmed the arbitrator's finding, and plaintiffs appealed.

The Court of Appeals affirmed, but held that the activity must be germane "reasonably related to the constitutionally relevant purpose of that association." In so doing, the court overruled one of the alternative holdings of Thiel v. State Bar of Wisconsin, 94 F.3d 399, 405 (7th Cir. 1996), which had stated, "First Amendment does not prohibit the Bar from funding non ideological, non germane activities with compelled dues."

The court, however, affirmed, since it found that the campaign was germane to a constitutionally acceptable purpose, improving quality of legal services to the people of Wisconsin. The court noted that the standard of review is deferential, and that the State Bar's theory was not unreasonable.

Judge Sykes dissented from the denial of rehearing en banc. While agreeing with the panel's analysis, he dissented from the application of those principles. He would have found that the campaign was not germane to the purpose of improving the quality of legal services, but merely to boost public opinion of Wisconsin lawyers.

No. No. 09 4080, 622 F.3d 708 (7th Cir. Sept. 9, 2010).

Please see the original opinion for the court's exact language.

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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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