In the

United States Court of Appeals

For the Seventh Circuit

No. 09-4080

JON E. KINGSTAD, STEVE LEVINE AND

JAMES S. THIEL,

Plaintiffs-Appellants,

v.

STATE BAR OF WISCONSIN,

Defendant-Appellee.

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 3:09-cv-00216-SLC—Stephen L. Crocker, Magistrate Judge.

ARGUED APRIL 15, 2010—DECIDED SEPTEMBER 9, 2010

Before BAUER, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. To practice law in the State

of Wisconsin, lawyers must join the Wisconsin State

Bar. To join the State Bar, lawyers must pay State Bar

dues. For more than fifty years, this system has been

generating First Amendment litigation, and this case is

the latest installment. In 2007, the State Bar used a portion of members’ dues to conduct a public image cam-
2 No. 09-4080

paign with the goal of improving the public’s perception

of Wisconsin lawyers. Petitioners Jon Kingstad, Steven

Levine, and James Thiel (collectively, the “Objectors”)

objected to the State Bar’s use of their mandatory dues

to fund the campaign as a violation of their rights

under the First Amendment. Their objection was first

heard by a state arbitrator, who ruled in favor of the

State Bar. The Objectors appealed to a state trial court, and

the State Bar removed their appeal to the federal courts.

The parties consented to having their case heard by

Magistrate Judge Stephen Crocker, who upheld the arbitrator’s determination. The petitioners now appeal to

this court.

We hold that to withstand scrutiny under the First

Amendment, State Bar expenditures funded by mandatory dues must be germane to the legitimate purposes of

the State Bar. In doing so, we overrule one of the alternative holdings of Thiel v. State Bar of Wisconsin,

94 F.3d 399, 405 (7th Cir. 1996), in light of more

recent teachings. Because the public image campaign at

issue in this case is germane to those constitutionally

legitimate purposes, however, we affirm the judgment

in favor of the State Bar.

Factual and Procedural Background

I. Purposes, Activities and Funding of the State Bar of Wisconsin

The State Bar of Wisconsin is a creation of the Wisconsin Supreme Court, which also governs bar activities
No. 09-4080 3

under its rules. See Wis. S. Ct. R. 10.01. Membership in

the State Bar is a “condition precedent to the right to

practice law in Wisconsin.” Rule 10.01(1). The stated

purposes of the State Bar are to:

aid the courts in carrying on and improving the administration of justice; to foster and maintain on

the part of those engaged in the practice of law

high ideals of integrity, learning, competence and

public service and high standards of conduct; to

safeguard the proper professional interests of the

members of the bar; to encourage the formation

and activities of local bar associations; to conduct a

program of continuing legal education; to assist or

support legal education programs at the preadmission level; to provide a forum for the discussion

of subjects pertaining to the practice of law, the

science of jurisprudence and law reform and the

relations of the bar to the public and to publish information relating thereto; to carry on a continuing

program of legal research in the technical fields of

substantive law, practice and procedure and make

reports and recommendations thereon within legally

permissible limits; to promote the innovation, development and improvement of means to deliver

legal services to the people of Wisconsin; to the end

that the public responsibility of the legal profession

may be more effectively discharged.

Rule 10.02(2). To serve these broad purposes, the Wisconsin Supreme Court rules permit the State Bar to

engage in and fund “any activity that is reasonably in-
4 No. 09-4080

tended” to further the State Bar’s purposes. Rule

10.03(5)(b)1. However, the Rules make clear that the

State Bar may not use the compulsory dues of any objecting member “for political or ideological activities

that are not reasonably intended for the purpose of regulating the legal profession or improving the quality

of legal services.” Id. Those activities must be funded

by voluntary dues or other sources of revenue.

A bar member may choose to withhold his or her

pro rata portion of dues that were budgeted for

activities that cannot be supported by compulsory dues.

See Rule 10.03(5)(b)2. To enable members to assert

their rights, the State Bar must publish each year a

written notice of the activities that can and cannot be

supported by compulsory dues, including each member’s pro rata portion of each. If a member contends

that the State Bar has allocated dues incorrectly between

compulsory and voluntary activities, the member may

demand that the question be settled by an arbitrator.

See Rule 10.03(5)(b)3. In this case, the Objectors objected to the State Bar’s expenditure of mandatory dues

on a public image campaign for lawyers in fiscal year 2007.

II. The State Bar’s Public Image Campaign

The State Bar launched the public image campaign in

response to signs that some bar members saw a need

for such a program. In the State Bar’s 1998 Membership Survey, when asked what they needed from the

State Bar, 15 of 145 members responding indicated that

they would like the State Bar to improve the image of the
No. 09-4080 5

Only one other need—lowering costs and fees of State Bar 1

seminars, conventions, dues, and section memberships—

received more comments.

legal profession in the community. One member 1

wrote that the State Bar needed “better involvement in

addressing the public’s perception of lawyers.” Another

commented that “the Bar needs to do more to improve

the image of lawyers and the legal profession in general.” A third noted that members needed “an aggressive

public relations program.” In 2000, a poll of all State

Bar division, section, and committee chairs and local bar

presidents showed that 78% believed a State Bar-led

message development campaign was necessary. And in

2001, 89% of respondents to the State Bar’s Bench Bar

survey indicated that they believed the reputation of the

legal profession had declined in the eyes of the public.

In the midst of these studies, the Office of the Chief

Justice of the Wisconsin Supreme Court, the Director of

State Courts, the League of Women Voters of Wisconsin,

and the State Bar established the Public Trust Steering

Committee to address issues of public trust and confidence in the Wisconsin justice system. The project had

three phases: first, to research and identify issues concerning public trust and confidence; second, to gather

input from public focus groups; and third, to create

an action plan. The action plan was finalized in October 2000. The Committee reported, among other points,

that judges and attorneys needed to be encouraged to

be involved in the community. The Committee found

that increasing public confidence in the justice system
6 No. 09-4080

depended on people knowing and trusting the decisionmakers and understanding the legal process, and that

judges and attorneys who were active in the community were perceived to be more trustworthy. The

Committee recommended increased judicial and attorney participation in and connection to their communities.

The State Bar formed a Public Image Committee to

address some of these concerns. Its purpose was to

“educate the public about the legal profession and

develop a common theme about how lawyers contribute

to the community.” President’s Message, 74 Wis. Law. 11

(Nov. 2001). The effort focused on the expertise, problemsolving skills, and service to the community of Wisconsin lawyers.

In 2002 the Public Image Committee unveiled a public

image campaign that carried the slogan “Wisconsin

Lawyers. Expert Advisers. Serving You.” Examples of

the materials developed and aired include:

• television spots featuring lawyers from the Green

Bay and Fox Valley area involved in a number of

community projects to improve the lives of senior

citizens and the Hmong population, elementary

and high school students involved in mock trial

efforts, and other community groups and activities;

• television spots featuring Dane County area lawyers volunteering their time to the Dane County

Bar Association’s Family Law Assistance Center;

and

• television spots featuring La Crosse and Eau Claire

area lawyers using their legal skills to assist the
No. 09-4080 7

La Crosse County Bar’s Free Legal Clinic, a free

legal clinic for homeless veterans in Tomah, and

the La Crosse area bar’s support for “Jim’s Grocery

Bag,” eleven La Crosse School District food pantries.

In fiscal year 2007—the year on which the fiscal year 2009

reduction was based and the focus of this lawsuit—the

State Bar spent $97,886 of mandatory dues on the public

image campaign. That amounted to $5.16 per member.

III. Proceedings Before the Arbitrator and the District Court

Pursuant to Wisconsin Supreme Court Rule 10.03(5)(b),

the Objectors’ claim was first heard by an arbitrator. The

Objectors argued that the State Bar’s expenditure of

mandatory dues on the public image campaign violated

their rights under the First Amendment because the

expenditures were not related to either the regulation

of lawyers or improving the quality of legal services,

and were ideological in nature. Cautioning that under

the State Bar bylaws he had “no authority to add, subtract, set aside or delete from any Supreme Court Rule

or State Bar bylaw,” the arbitrator ruled in favor of the

State Bar. Arb. Dec. at 6, citing Wis. State Bar Bylaws,

Art. I, Sec. 5(e)(vi). Although the arbitrator expressed

“doubts about the ‘germaneness’ of the public image

campaign,” he concluded that having a good reputation was a proper professional interest for any profession and that the public image campaign appeared to fit

into the State Bar’s statutory purposes to “provide a

forum for the discussion of subjects pertaining to the

practice of law, . . . and the relations of the Bar to the
8 No. 09-4080

The district court also suggested that after removal, the 2

Federal Arbitration Act would control review of the

arbitrator’s decision. The point is largely moot because the

standards under either the Wisconsin or federal arbitration

statutes are identical. See Wis. Stat. § 788.10(1)(d); 9 U.S.C.

§ 10(a)(4). However, the FAA was not invoked by the parties,

and our jurisdiction is based on the federal question raised

by the Objectors, not the FAA, which is not an independent

source of jurisdiction. E.g., Minor v. Prudential Securities, Inc., 94

F.3d 1103, 1104-05 (7th Cir. 1996). Because the state arbitrator

(continued...)

public and to publish information relating thereto.” See

Rule 10.02(2).

The arbitrator, however, ultimately was convinced

that “germaneness” was irrelevant unless the challenged

expenditure was political or ideological. See Arb. Dec. at

6-7, citing Rule 10.03(5)(b)1. The Objectors did not argue

that the public relations campaign was political, and the

arbitrator considered but rejected the Objectors’ argument that the public image campaign was ideological.

The arbitrator thus found that the State Bar had demonstrated that the public image campaign was within the

language and intent of the applicable Wisconsin

Supreme Court Rules and that the Objectors could be

required to pay their share of its costs.

The Objectors sought judicial review of the arbitrator’s

decision in the state courts. The State Bar removed the

action to federal court. Removal was proper under 28

U.S.C. §§ 1331 and 1441(b) because the Objectors’

claim arose under the federal Constitution. The parties 2
No. 09-4080 9

(...continued) 2

arguably exceeded his powers, his decision was appealable,

and because the underlying claim arose under the federal

Constitution, the appeal was removable.

consented to have their case heard by Magistrate Judge

Crocker under 28 U.S.C. § 636(c). Judge Crocker affirmed

the arbitrator’s decision. He rejected the Objectors’ argument that language in this court’s decision in Thiel v.

State Bar of Wisconsin, 94 F.3d 399 (7th Cir. 1996), was

overruled by the Supreme Court in United States v.

United Foods, Inc., 533 U.S. 405 (2001). See Kingstad v.

State Bar of Wisconsin, 670 F. Supp. 2d 922, 926 (W.D. Wis.

2009). The Objectors then appealed to this court.

Analysis

I. Mandatory Associations under the First Amendment

The Objectors argue that even though the State Bar’s

public image campaign was not political or ideological,

it was not germane to the purposes of the State Bar

that allow the group to compel members to support its

group speech activities. Objectors contend that such

forced expenditures must also be germane to the purposes of the State Bar in order to pass First Amendment

scrutiny. Our review of this constitutional question is

de novo. Zbaraz v. Madigan, 572 F.3d 370, 378 (7th Cir.

2009); Klementanovsky v. Gonzales, 501 F.3d 788, 791 (7th

Cir. 2007). On this threshold issue of law, we agree with

the Objectors.
10 No. 09-4080

To understand why Objectors can be compelled to

subsidize some but not all of the State Bar’s activities,

one must understand why integrated or mandatory bars

are permissible under the First Amendment. We begin

with a brief overview. The First Amendment issue

arises because bar members are required by force of

law to join the group (as a condition of practicing their

profession) and to provide financial support for group

speech. These requirements implicate the First Amendment freedom of association, which includes the freedom to choose not to associate, and the First Amendment

freedom of speech, which also includes the freedom to

remain silent or to avoid subsidizing group speech with

which a person disagrees. See generally Glickman v.

Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471-72 (1997);

Hurley v. Irish-American Gay, Lesbian and Bisexual Group

of Boston, 515 U.S. 557, 573-74 (1995); Railway Employees’

Department v. Hanson, 351 U.S. 225, 236-38 (1956).

Despite this general rule against “forced speech,”

however, the Supreme Court has found that certain mandatory associations—agency shops, agricultural marketing collectives, and integrated or mandatory bars—

are permitted under the First Amendment because the

forced speech serves legitimate governmental purposes for the benefit of all members. For example,

“agency shop” arrangements, in which all employees

must pay union dues whether they are union members

or not, are permitted because the government has an

interest in peaceful labor relations. In general, peaceful

labor relations are promoted if all employees share in
No. 09-4080 11

This arrangement has been described variously as an “inte- 3

grated,” “mandatory” or “unified” bar. See, e.g., Romero v.

Colegio de Abogados de Puerto Rico, 204 F.3d 291, 297 n.5 (1st

Cir. 2000) (“integrated” or “unified”); Morrow v. State Bar of

(continued...)

the expenses related to the collective bargaining from

which all employees benefit—both union members and

non-members. See, e.g., Abood v. Detroit Board of

Education, 431 U.S. 209, 221-23 (1977) (“agency shop”

arrangement was permitted to prevent “free riders” on

union’s collective bargaining efforts); International Association of Machinists v. Street, 367 U.S. 740, 763-64 (1961)

(same); Hanson, 351 U.S. at 235-38 (purpose of promoting peaceful labor relations was legitimate; without a showing that agency shop arrangements were

used to force ideological conformity or to infringe on

employees’ freedom of expression or that dues were

imposed for reasons unrelated to collective bargaining,

agency shop arrangement did not violate First Amendment). Similarly, statutorily-mandated agricultural marketing collectives can pass First Amendment muster

because the government has an interest in establishing

and maintaining a comprehensive marketing plan for

agricultural commodities. Glickman, 521 U.S. at 469, 473.

“Mandatory” or “unified” bars, under which duespaying membership is required as a condition to practice law in a state, are also permitted under this theory.

See generally Lathrop v. Donohue, 367 U.S. 820 (1961)

(examining Wisconsin’s mandatory bar). In Lathrop, the 3
12 No. 09-4080

(...continued) 3

California, 188 F.3d 1174, 1175-76 (9th Cir. 1999) (“unified” and

“mandatory bar memberships”); Schneider v. Colegio de

Abogados de Puerto Rico, 187 F.3d. 30, 31 (1st Cir. 1999) (“mandatory bar”); Washington Legal Foundation v. Massachusetts Bar

Foundation, 993 F.2d 962, 979 (1st Cir. 1993) (“unified bar”).

“Integrated” and “unified” sound more positive, but “mandatory” is closest to reality.

Court analogized a state bar to an agency shop and

found that Wisconsin had an interest in establishing an

integrated bar to: 

elevat[e] the educational and ethical standards of the

Bar to the end of improving the quality of the legal

service available to the people of the State, without

reference to the political process. It cannot be denied

that this is a legitimate end of state policy. We think

that the Supreme Court of Wisconsin, in order to

further the State’s legitimate interests in raising

the quality of professional services, may constitutionally require that the costs of improving the profession in this fashion should be shared by the subjects and beneficiaries of the regulatory program,

the lawyers, even though the organization created

to attain the objective also engages in some legislative activity.

367 U.S. at 842-43 (internal footnote omitted). The Lathrop

Court reserved judgment on the question whether the

dissenters’ rights were being violated by using mandatory bar dues to support political activities, finding
No. 09-4080 13

that the record was not sufficiently developed to

address that claim. Id. at 847-48.

However, it is also now clear that the group speech

itself is not a sufficient purpose for a mandatory association to withstand First Amendment scrutiny. In United

States v. United Foods, Inc., 533 U.S. 405 (2001), the

Supreme Court examined an agricultural collective

under which most of the collected assessments were

spent on generic advertising. Although the dissenting

group members were not restricted from communicating their own messages, were not compelled to participate in any actual or symbolic speech, and were not

compelled to support any particular political or ideological viewpoint, the Court still held the program unconstitutional. The Court found that the underlying program was different from the program that had passed

muster in Glickman in one critical respect: “In Glickman

the mandated assessments for speech were ancillary to

a more comprehensive program restricting marketing

autonomy. Here, for all practical purposes, the advertising itself, far from being ancillary, is the principal

object of the regulatory scheme.” Id. at 411-12. A forced

subsidy of group speech, in other words, is permissible

when it is “a necessary incident of a larger expenditure

for an otherwise proper goal requiring the cooperative

activity.” Id. at 414. In United Foods, there was no

“larger expenditure.” The principal purpose of the

group was the compelled speech itself, so the Court

found that the mandatory subsidy of that speech violated the dissenters’ First Amendment rights.
14 No. 09-4080

II. Subsidy of “Non-Germane” Speech under the First Amendment

In light of these principles, Wisconsin’s mandatory

State Bar is constitutional, and the Objectors may be

compelled to pay their share of direct and indirect expenses that are reasonably incurred by the State Bar to

serve its dual constitutional purposes of regulating the

legal profession and improving the quality of legal services. The Objectors’ argument is that the State Bar’s

public image campaign simply does not fit that bill. More

specifically, they argue that the constitutional issue

cannot be resolved based solely on the arbitrator’s

finding that the State Bar’s public image campaign was

non-political and non-ideological. We agree that the

issue of germaneness must also be part of the constitutional analysis.

In Keller v. State Bar of California, 496 U.S. 1 (1990), the

petitioners were practicing lawyers subject to California’s integrated bar. They claimed that the use of their

membership dues to finance ideological or political

activities that they opposed violated their rights under

the First Amendment. They objected to the bar’s lobbying

efforts, its filing of amicus briefs in pending cases, and

its expenditures for its annual conference and education

programs. The California Supreme Court upheld the

expenditures, but the Supreme Court of the United

States reversed. It stated that the constitutionally permissible purposes of the integrated bar were to regulate

the legal profession and to improve the quality of legal

services. A reviewing court had to determine whether
No. 09-4080 15

the challenged activities were necessarily and reasonably incurred for those purposes, or whether they

were “activities of an ideological nature which [would]

fall outside of those areas of activity.” Keller, 496 U.S. at 13-

14. The Court explained:

Precisely where the line falls between those State

Bar activities in which the officials and members

of the Bar are acting essentially as professional advisers to those ultimately charged with the regulation

of the legal profession, on the one hand, and those

activities having political or ideological coloration

which are not reasonably related to the advancement

of such goals, on the other, will not always be easy

to discern. But the extreme ends of the spectrum

are clear: Compulsory dues may not be expended

to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum

petitioners have no valid constitutional objection to

their compulsory dues being spent for activities connected with disciplining members of the Bar or proposing ethical codes for the profession.

Id. at 15-16.

We also learn from the Supreme Court’s exploration

of this question in other forced group speech contexts. In

Ellis v. Brotherhood of Railway, Airline, and Steamship

Clerks, 466 U.S. 435, 449-55 (1984), the Court considered

whether a union’s convention expenses, litigation expenses that were not for bargaining or grievances,

union publication costs, social event expenses, employee

death benefits, and expenses related to general organ-
16 No. 09-4080

At the time of the Court’s opinion the union was no longer 4

the exclusive bargaining agent, and the petitioners were no

longer involved in the death benefits system. Employee

death benefits were left as an open question. Ellis, 466 U.S.

at 454-55.

izing efforts were “germane” to the union’s purpose. The

Court considered each category of expense to see whether

it was “necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer

on labor-management issues.” Id. at 448. The dissenters’

belief that the money was not being well spent on any

one of these endeavors was not enough. Id. at 456. Ultimately, without discussing whether any of the challenged categories were political or ideological, the Court

found that of the challenged expenses, only the union’s

litigation expenses that were not for bargaining or grievances and expenses related to its organizing efforts

were not germane to the union’s purposes that permitted

forced speech. Id. at 448-55. The other categories of expenditures—social events, publications, and conventions—did not infringe the objecting employees’ First

Amendment rights any more than their compulsory

contribution to the union, and were upheld by the

Court. Id. at 455-57.4

Also, in Lehnert v. Ferris Faculty Association, 500 U.S. 507

(1991), the Court reiterated that, to be charged to dissenting employees, the agency shop union expenses

must “(1) be ‘germane’ to collective bargaining activity;
No. 09-4080 17

The Lehnert Court also noted, without discussion or explana- 5

tion, that the campaign was political in nature. See id. The

Objectors have not argued that the public image campaign

conducted by the Wisconsin State Bar was similarly political.

(2) be justified by the government’s vital policy interest

in labor and peace and avoiding ‘free riders’; and (3) not

significantly add to the burdening of free speech that is

inherent in the allowance of an agency or union shop.”

Lehnert, 500 U.S. at 519. The Court cautioned that the

test did not require “a direct relationship between

the expense at issue and some tangible benefit to the

dissenters’ bargaining unit.” Id. at 522. We need not list

the specific expenditures under review aside from one

that is particularly relevant here—a public image campaign. The Court found that, under this standard, the

public image campaign was not germane to the union’s

collective bargaining functions. Lehnert, 500 U.S. at 528-29.5

From these teachings, we conclude that in a forced

group speech case, the First Amendment requires a

reviewing court to consider whether challenged expenditures by dissenting members of a mandatory association are reasonably related to the constitutionally

relevant purposes of that association. It is not sufficient

to examine only the political or ideological nature of

those expenditures without also considering whether the

expenses are related to the constitutionally legitimate

purposes of the association that permit forced group

speech in the first place. The applicable cases do not

describe the analysis as a test of “either-or,” as in “either”
18 No. 09-4080

the expenditures are non-political and non-ideological

“or” they are non-germane before they implicate the

First Amendment. Rather, the key is the overall “germaneness” of the speech to the governmental interest

at issue. The political or ideological nature of the speech

factors into that ultimate analysis.

The parties have framed the issue before us as

whether the Objectors may be required to subsidize

speech that is not political or ideological but that is

also not germane to the constitutionally permissible

purposes of a mandatory bar. Since we last addressed this

issue in Thiel v. State Bar of Wisconsin, both the Supreme

Court and the First Circuit have provided additional

guidance. In United Foods, the Supreme Court reviewed

its earlier decisions in Abood and Keller and explained

the test not in terms of politics or ideology but in terms

of germaneness: “speech need not be characterized as

political before it receives First Amendment protection,”

and “lawyers [can] be required to pay moneys in

support of activities that [are] germane to the reason

justifying the compelled association in the first place . . . .

[O]bjecting members [are] not required to give speech

subsidies for matters not germane to the larger regulatory purpose which justifie[s] the required association.” United Foods, 533 U.S. at 413-14, discussing Abood,

431 U.S. at 232 (union dues), and Keller, 496 U.S. at 14

(mandatory state bar).

The First Circuit considered this problem of germaneness for bar expenditures in Romero v. Colegio de Abogados

de Puerto Rico, 204 F.3d 291 (1st Cir. 2000). Puerto Rico’s
No. 09-4080 19

mandatory bar (the “Colegio”) required members to

purchase life insurance from its group life insurance

program. That expenditure was obviously not political

or ideological, but could unwilling members be required

to pay the bar for life insurance they did not want? Noting

that in some years the insurance premium constituted

as much as 72% of the bar dues, the First Circuit found

the mandatory payment to the Colegio’s group life insurance plan was unconstitutional, holding specifically

that mandatory bar association dues could not be used to

fund non-germane activities even if those activities

were not ideological. See id. at 300 (“To say that germaneness is the test in ideological expenditure cases is not to

say that it is not also a relevant inquiry in cases involving non-ideological expenditures.”). In reaching its

conclusion, the First Circuit considered the applicable

Supreme Court precedents and the policy supporting its

conclusion. As the court explained, the First Amendment

permits the government to force a union or bar member

to pay only for those expenses that are germane to the

purposes that justify requiring the member to belong to

the group in the first place:

[S]trong public interests justify the intrusion, and

the germaneness test guarantees that these public

interests are being served by any challenged activity.

Compelling financial support for activities wholly

unrelated to those public interests, however, changes

the balance and weakens the justification that supported the intrusion on First Amendment associational interests in the first place. Simply stated, that

an individual may be compelled to associate and
20 No. 09-4080

financially contribute for some purposes does not

mean she may be compelled to associate and financially contribute for all purposes. Without this germaneness check, once a person is compelled to join

and support a bar association for legitimate reasons,

she could be forced to pay for any bar activity for

any reason or no reason, as long as it did not

involve political or ideological expression. Under

the Colegio’s theory, for example, it could mandate

that members join its life insurance program and

then spend 99% of member dues on life insurance.

Romero, 204 F.3d at 301 (internal citation omitted). We

agree with Romero and this reasoning. 

To avoid an inquiry into germaneness, the State Bar

relies heavily on our opinion in an earlier chapter of the

Wisconsin bar saga, Thiel v. State Bar of Wisconsin, 94

F.3d 399 (7th Cir. 1996). In Thiel, plaintiffs challenged

the facial validity of Wisconsin Supreme Court Rule

10.03(5)(b) to the extent it authorized the use of mandatory dues for non-germane, non-ideological expenditures. After resolving an Eleventh Amendment issue,

the Thiel majority opinion reviewed the then-recent

Supreme Court cases on forced speech and concluded

that the court did not need to decide whether the State

Bar’s non-political and non-ideological speech was germane to its purposes of regulating the legal profession

or improving the quality of legal services: “we hold that

the First Amendment does not prohibit the Bar from

funding non-ideological, non-germane activities with

compelled dues.” 94 F.3d at 405. The Thiel majority then
No. 09-4080 21

addressed the challenged activities and concluded that

they were all in fact germane to the State Bar’s legitimate

purposes. Id. Either of these alternative holdings was

sufficient to decide Thiel itself.

Writing separately, Judge Ripple concurred with the

judgment but disagreed with the broader holding. He

cautioned that all of the activities complained of in

Thiel “fit quite comfortably within the category of nonideological, nonpolitical activities that are germane to

the regulation of the legal profession or the improvement of the quality of legal services.” He concluded

that the court was “not confronted here with a situation

in which the bar can be said to be engaging in nonpolitical, non-ideological activities that are also completely

divorced from those statutory purposes that justify mandatory dues.” Id. at 406 (Ripple, J., concurring). Judge

Ripple noted further that “certainly, the same procedural

protections that ferret out activities of an ideological

and political nature will also identify nongermane activities that are not ideological or political. But that does

not mean necessarily that such nongermane activities

need not be identified or that they can be supported by

mandatory dues.” Id.

Today’s case again presents the question that divided

the Thiel panel. The arbitrator and the district court understandably relied on the language of the majority’s

first alternative holding in reaching their decisions in

this case. With the benefit of the later guidance from

United Foods and the First Circuit’s helpful opinion in

Romero, however, we agree with Judge Ripple’s conclu-
22 No. 09-4080

Because this decision overrules the alternative holding of

6

Thiel, this opinion has been circulated among all judges of

this court in regular active service pursuant to Circuit Rule

40(e). No judge favored a rehearing en banc on the question of

overruling that portion of Thiel. Judge Sykes would rehear

the case on the issue of the actual germaneness of the State

Bar’s public image campaign, and her dissent from the denial

of rehearing en banc follows.

sion. We agree that the State Bar may use the mandatory

dues of objecting members to fund only those activities

that are reasonably related to the State Bar’s dual purposes of regulating the profession and improving the

quality of legal services, whether or not those same expenditures are also non-ideological and non-political.

We thus overrule the first alternative holding in Thiel

and hold that the First Amendment prohibits the Wisconsin State Bar from funding non-germane activities

with compelled dues. This holding effectively finds that 6

the second sentence of Wisconsin Supreme Court Rule

10.03(5)(b)1 is too narrow because it authorizes objections to the use of mandatory dues only for political

and ideological activities that are not reasonably related

to the constitutional purposes of regulating the legal

profession and improving the quality of legal services. 

III. Germaneness of the Public Image Campaign

The State Bar argues that its public image campaign

expenses were germane to improving the quality of legal

services available to the people of Wisconsin. The Bar’s
No. 09-4080 23

concern was that, if the public lacks trust in lawyers

and the legal system, more people may represent themselves rather than seeking out the assistance of a lawyer.

On the other hand, if people have more confidence in

lawyers and the legal system, they are more likely to

participate in that system and will be more likely to

refrain from extra-legal, and even violent, self-help

measures. By attempting to promote trust in lawyers

and the legal system, the public image campaign also

sought to solidify the fiduciary relationship between

lawyer and client and to improve lawyer-client communications by encouraging disclosure, candor, and

compliance with competent advice.

The Objectors counter that there was no demonstrated connection between improvement of the public’s

perception of lawyers and the legal profession and the

improvement of the quality of services that those

lawyers provide. According to the Objectors, the public

image campaign was designed to benefit lawyers, not

the public, by encouraging more people to engage the

services of lawyers, thus generating more fees. Although

the arbitrator had “doubts” as to the germaneness of the

public image campaign, he did not reach the issue

because he concluded he was not authorized to decide

the constitutional issue. Unlike the arbitrator, we are so

authorized. The record has been supplemented, and

the key facts about the content and nature of the State

Bar’s public image campaign are not disputed. We can

apply the constitutional test for reasonableness without

remand.
24 No. 09-4080

Under Keller, 496 U.S. at 14, and Ellis, 466 U.S. at 448, the

test here is whether the challenged expenditures were

“necessarily or reasonably incurred” for the constitutionally legitimate purposes that authorize mandatory

dues. No one contends the public image campaign

costs were “necessarily” incurred to improve the quality

of legal services. The issue is whether the costs were

“reasonably” incurred for that purpose. The State Bar

believes there is a relationship between improving the

public’s trust in lawyers and improving the quality of

legal services that those lawyers are able to provide. By

fostering that trust, the State Bar hoped to encourage

better communication between lawyers and clients, and,

in doing so, to encourage development of the attorneyclient relationship. The hope was that trust and communication would improve the quality of the relationship and the service provided.

Our dissenting colleague finds that theory to be speculative and unsupported by the record. We do not suggest

that the theory is beyond debate. It relies on a series of

assumptions: a “soft” image campaign will improve

the public image of lawyers, which will lead in turn

to better attorney-client relationships, which will lead

in turn to better quality legal services. We do not assert

that the record shows the public image campaign has

actually improved the quality of legal services, but we

do not see a need for a trial that would scrutinize either

the subjective motives of bar leaders or the actual effectiveness of the public image campaign. The standard

of review is deferential, as when we review challenged
No. 09-4080 25

legislation to determine whether it is reasonably related

to a legitimate governmental purpose. Under that deferential standard, we find that the State Bar’s theory

is not unreasonable. A client who trusts his or her lawyer

seems more likely to disclose relevant information, particularly if that information is sensitive, and better, more

candid communication should enable lawyers to give

better, more comprehensive advice—which should improve the quality of services. Also, it seems reasonable

to us to expect that a client who trusts his or her lawyer

is more likely to accept and act upon any advice the

lawyer is able to provide. When people follow competent

legal advice, the system itself is improved.

Do Wisconsin lawyers themselves benefit from the

State Bar’s public image campaign? We can assume that

they may. If more people seek out the services of

lawyers as a result of the public image campaign, those

lawyers will benefit from the increased business that

results. But that additional effect does not nullify the

legitimacy of the campaign. Again, the State Bar is not

required to prove that its expenditures were actually

successful in accomplishing the stated purpose, or that

they served only that purpose, or that the public image

campaign was a particularly wise use of the State

Bar’s funds. After all, “[p]etitioners may feel that their

money is not being well-spent, but that does not mean

that they have a First Amendment complaint.” Ellis, 466

U.S. at 456, quoted by Thiel, 94 F.3d at 405. The limited

issue before us is whether the public image campaign

was reasonably related to the constitutionally legitimate
26 No. 09-4080

purpose of improving the quality of legal services, and

we find that it was.

Although the Supreme Court in Lehnert found that a

union’s public image campaign was not germane, the

purposes supporting mandatory union dues (collective

bargaining and grievance resolution) and a mandatory

bar (regulating the profession and improving legal services) are very different. See Lehnert, 500 U.S. at 528-29.

We find persuasive here the Ninth Circuit’s decision in

Gardner v. State Bar of Nevada, 284 F.3d 1040 (9th Cir.

2002), which distinguished Lehnert and found a public

image campaign for lawyers was “highly germane” to

the legitimate purposes of a mandatory bar. The court

provided a powerful defense of the legal profession

and the need for fostering—and earning—public trust:

Among the functions of the State Bar in this case

is the function identified by the district court—“to

advance understanding of the law, the system of

justice, and the role of lawyers, as opposed to

nonlawyers, to make the law work for everyone.” That

purpose is satisfied by the State Bar’s campaign to

dispel any notion that lawyers are cheats or are

merely dedicated to their own self-advancement or

profit. The law, rightly understood, is not a business

where the bottom line dictates the conduct that is

permissible. The law is a profession where a near

monopoly of access to the courts is granted to a

trained group of men and women on the basis that

they will follow the profession’s rules of conduct

and in so doing serve the cause of justice.
No. 09-4080 27

[Plaintiff] Gardner makes the point that lawyers

are supposed to serve their clients, not “everyone.” But

the underlying assumption that justifies the justice

system is that everyone is served by the adequate

representation of conflicting interests and perspectives. It is perfectly true, not puffery, that lawyers

strive to make the law work for everyone by their

fair and zealous representations of their clients. It

is important for the public to understand that a

lawyer representing a defendant in a criminal case

is not a defender of crime, and that a lawyer advising

his or her client of a tax break is not a scoundrel but

an ally of a government that should collect as tax no

more than the law allows. It is equally important

for citizens to know that a prosecutor seeking to

imprison a man believed guilty of a crime is serving

justice, as is the state tax department’s attorneys

seeking to collect a tax. The lawyer who represents a

client who believes she has been unfairly denied

promotion is as much a partner in the system of

justice as the lawyer who acts for her employer

seeking to explain the apparent discrimination.

The public needs to know that often there are two,

or more, sides to a story or a situation. More’s Utopia

has no lawyers, but in our real world, lawyers are

not merely a necessity but a blessing. If the public

doesn’t understand that—and the State Bar had

reason to think many members of the public did

not—the justice system itself will wither. The work

of the State Bar to foster public understanding of the

adversary nature of law is vital to the bar’s function.
28 No. 09-4080

The dissent’s call for increased scrutiny of the State Bar’s 7

public image campaign would also cast doubt on the germaneness of the activities approved in Thiel. For reasons previously

(continued...)

It is no infringement of a lawyer’s First Amendment freedoms to be forced to contribute to the advancement of the public understanding of law.

284 F.3d at 1043.

The Ninth Circuit’s generous approach to germaneness

in Gardner is consistent with the portion of Thiel that

remains binding, where we found that all of the particular activities at issue were germane to the purpose of the State Bar and could be funded with mandatory dues. The disputed activities in Thiel included

publishing and distributing a Bill of Rights pamphlet for

pre-college students, conducting an “Economics of Practice” survey designed to help lawyers address business

decisions related to the practice of law, funding awards

given to reporters for writing on law-related topics,

sponsoring a group to assist alcoholic lawyers, local bar

grants, and sponsoring a mock trial competition. Thiel,

94 F.3d at 405. Although we have overruled the alternative holding in Thiel, its unanimous assessment of the

actual germaneness of these activities remains sound.

There is no meaningful difference between the public

image campaign at issue here and several of those expenditures we approved in Thiel. We do not believe the

reasonableness test requires federal courts to engage in

closer parsing of the State Bar’s expenditures. In light of

7
No. 09-4080 29

(...continued) 7

stated, we do not believe that this holding of Thiel needs to be

revisited, or that the federal courts should engage in such a

close parsing of the contents of the State Bar’s programs.

Gardner and Thiel, we conclude that the State Bar’s public

image campaign was germane to the Bar’s constitutionally

legitimate purpose of improving the quality of legal

services available to the Wisconsin public.

The judgment of the district court affirming the arbitrator’s decision to overrule plaintiffs’ objections

is AFFIRMED.

SYKES, Circuit Judge, dissenting from the denial of rehearing en banc. Three Wisconsin lawyers filed an objection to the State Bar’s use of their mandatory bar dues

to fund a public-relations campaign designed to improve the image of lawyers and the legal profession.

Their First Amendment challenge raises important questions about the continued viability of Thiel v. State Bar of

Wisconsin, 94 F.3d 399 (7th Cir. 1996), the validity of

Wisconsin Supreme Court Rule (“SCR”) 10.03(5)(b)1, and

the proper approach to the “germaneness” inquiry that

determines whether a compulsory speech subsidy is
30 No. 09-4080

consistent with the constitution, at least in the context of

a mandatory bar. The State Bar defends Thiel and SCR

10.03(5)(b)1, and argues that its use of mandatory

bar dues for a public-image campaign is constitutional

under Keller v. State Bar of California, 496 U.S. 1 (1990).

My colleagues side with the challengers on the first

two inquiries, overruling the primary holding in Thiel

and effectively invalidating SCR 10.03(5)(b)1. Panel

Op. at 14-22. I agree with this part of the opinion. The

compelled-subsidy doctrine of Keller is not limited to

cases challenging the use of compulsory bar dues for

ideological or political activities, as Thiel held and the

supreme court rule implies. It applies more broadly, for

the reasons the panel has amply explained. Under Keller

and the Supreme Court’s related decisions in the unionshop context, a mandatory bar association may use compulsory bar dues only for activities that are germane to

the constitutionally relevant justifications for forced barassociation membership: (1) the regulation of the legal

profession; and (2) the improvement of the quality of

legal services. Keller, 496 U.S. at 14; see also Romero v.

Colegio de Abogados de Puerto Rico, 204 F.3d 291, 297-303

(1st Cir. 2000). Activities not germane to these purposes must be funded from voluntary dues. This is so regardless of whether the challenged expenditure qualifies

as “political” or “ideological.”

More specifically, Keller held that “the guiding standard”

for assessing the constitutionality of a mandatory bar

association’s use of compulsory bar dues is “whether the

challenged expenditures are necessarily or reasonably
No. 09-4080 31

The plaintiffs here—Jon Kingstad, Steven Levine, and James 1

Thiel—are frequent mandatory-bar litigants and are currently

waging a two-front war against the alleged unconstitutional

use of their compulsory bar dues. This case is one front. The

other is a petition before the Wisconsin Supreme Court to amend

SCR 10.03(5)(b)1 to delete the language that limits the Keller

“germaneness” inquiry to State Bar activities that are “political

or ideological” in nature. See Pet. to Amend SCR 10.03(5)(b)1,

(continued...)

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. at 14 (quoting

Lathrop v. Donohue, 367 U.S. 820, 843 (1961)). The panel

comprehensively explains why Keller and more recent

developments in Supreme Court caselaw require us to

overrule the primary holding in Thiel. Panel Op. at 14-22.

Overruling Thiel, in turn, effectively invalidates critical

limiting language in SCR 10.03(5)(b)1. This rule was

adopted by the Wisconsin Supreme Court in response

to Keller and essentially reflects the more limited understanding of Keller articulated in Thiel. The rule provides,

in pertinent part, that “[t]he State Bar may not use compulsory dues of any member who objects to that use

for political or ideological activities that are not reasonably intended for the purpose of regulating the legal profession or improving the quality of legal services.” WIS.

SUP. CT. R. 10.03(5)(b)1. To the extent that this language

limits the constitutionally required germaneness inquiry

to “political or ideological activities,” the rule is too narrow, as the panel has correctly held. Panel Op. at 22. 1
32 No. 09-4080

(...continued) 1

No. 09-08, filed on August 24, 2009, by Petitioners Jon

Kingstad, Steven Levine, James Thiel, and 40 other State Bar

members, available at http://www.wicourts.gov/supreme/docs/

0908petition.pdf. The state supreme court is holding this

rulemaking petition in abeyance pending the outcome of this

litigation.

Thus far I have no quarrel with anything in the panel’s

analysis; to the contrary, I think it is thorough and sound.

I cannot agree, however, with the panel’s application

of these principles, which appears in Part III of the

analysis section of the opinion. Panel Op. at 22-29.

I recognize that this sort of disagreement would not

ordinarily justify rehearing this case en banc. But in this

case I think it does. After setting the constitutionally

required germaneness inquiry on a sound doctrinal

foundation, the panel applies the standard in a way that

drains it of any real meaning. The panel concludes that

the State Bar’s public-image campaign satisfies Keller’s

germaneness requirement; in my view, this conclusion

is procedurally questionable and substantively flawed.

As to procedure, as the panel has noted, this case came

into federal court from an arbitration proceeding commenced in accordance with the procedural scheme established in SCR 10.03(5)(b) for challenging State Bar expenditures of mandatory bar dues. Pursuant to the requirements of the rule, the objecting lawyers sought

arbitration on the question of whether the State Bar’s

public-image campaign could properly be funded from
No. 09-4080 33

No one suggests that the public-image campaign had any- 2

thing to do with “regulating the bar.”

their compulsory dues or must instead be funded

from voluntary dues. The arbitrator held that because

the public-image campaign was not “political or ideological,” the germaneness limitation on the use of compulsory dues set forth in SCR 10.03(5)(b)1 was not implicated. The arbitrator did not decide the Keller germaneness issue, properly understood—that is, he did not

decide whether the public-image campaign was germane to “improving the quality of legal services.” The 2

arbitrator did, however, express some significant skepticism on the matter. He said:

I believe that based on the evidence presented it is a

stretch, in fact, to regard [improving the quality of

legal services] as the campaign’s primary purpose.

There is simply too much in the record indicating

that the predominant goals have more to do with the

interests of lawyers than with the interests of their

clients or potential clients.

I will return to this point in a moment.

The objecting lawyers sought judicial review of the

arbitrator’s decision in state court, and the State Bar

removed the suit to federal court based on the lawyers’

First Amendment challenge to SCR 10.03(5)(b)1 and

this use of their mandatory bar dues. As I have

noted, the State Bar’s fallback position was that if the

political/ ideological limitation in the supreme court

rule was invalid, this court can and should decide the
34 No. 09-4080

broader germaneness question. And that’s what the

panel has done.

Here’s the (arguable) procedural problem: The objecting lawyers asked for a remand if they prevailed on

their claim that the supreme court rule is unconstitutional. They said a remand was appropriate because

the arbitrator did not decide the broader germaneness

question and because the record in the district court on

that issue is nonexistent or at best incomplete. It’s not

entirely clear to me whether a remand is necessary or

appropriate under the circumstances. What is clear,

however, is that the panel’s germaneness holding rests

entirely on broad and generalized assertions about

public trust in the legal profession, not on anything in

the record.

And this is where I think the opinion is off-track as a

substantive matter. The panel concludes that the State

Bar’s public-image campaign is indeed germane to “improving the quality of legal services.” The rationale for

this conclusion is essentially twofold. First, the panel

simply accepts the Bar’s assertion that the point of the

image campaign was to foster public trust in the

legal profession and defers to the Bar’s “theory” that

greater public trust will improve the quality of the legal

services Wisconsin lawyers provide to their clients. Panel

Op. at 24-25. Second, the panel adopts the rationale of

the Ninth Circuit’s decision in Gardner v. State Bar of

Nevada, 284 F.3d 1040 (9th Cir. 2002), an analogous case

involving a First Amendment challenge to the Nevada

State Bar’s use of compulsory dues to fund a similar
No. 09-4080 35

public-relations campaign. Panel Op. at 26-28. This is a

serious misapplication of Keller’s germaneness requirement. The panel credits the Bar’s germaneness “theory”

with little critical analysis and assigns Gardner far more

persuasive weight than it can reasonably bear.

The State Bar’s factual characterization of the image

campaign is called into question by the very slogan

under which the public-relations effort flies: “Wisconsin

Lawyers. Expert Advisors. Serving You.” The Bar’s purpose here is unmistakable: It is to boost public opinion of Wisconsin’s lawyers, not enhance public understanding of the legal profession or improve the quality

of the work lawyers do for their clients or the public. To

be “germane” to “improving the quality of legal services,” an expenditure of compulsory bar dues should as

a factual matter have at least some connection to the

law, legal advising, legal education, legal ethics, or the

practice of law. The public-image campaign was aimed

at none of these things; it was all about marketing.

Indeed, the State Bar called it a “Branding Initiative” and

pitched it to Wisconsin’s lawyers as a public-relations

effort designed to “brand the profession” in order to

“improve the public’s perception of the profession.”

The ads themselves were totally content-free, at least

insofar as conveying any meaningful information about

the law or the role of lawyers in our legal system. They

depicted lawyers engaged in various forms of legal and

nonlegal volunteer work in their communities. This kind

of “soft” advertising may have a place in the package

of services a bar association might legitimately want to
36 No. 09-4080

I am not suggesting that the germaneness inquiry requires 3

an examination of the “subjective motives of bar leaders” or

that the State Bar must establish that its “expenditures were

(continued...)

provide for its members, but let’s not pretend it had

anything to do with educating the public about the

actual role of lawyers in our legal system. This was an

image campaign, after all.

But even accepting at face value the State Bar’s contention that the ads were designed to promote public

understanding of and therefore trust in the legal profession, any claim that the image campaign was reasonably

related to improving the quality of legal services is at

best strained and at worst a little odd. To state the

obvious—and as the arbitrator recognized—an ad campaign directed at boosting sagging public opinion of the

legal profession serves the interests of lawyers, not

their clients or the public. In what sense was this an

expenditure “necessarily or reasonably incurred for the

purpose of . . . improving the quality of . . . legal

service[s],” as required by Keller? 496 U.S. at 14. The

opinion contains a number of conclusory assertions on

this point—e.g., that greater public trust as a general

matter will yield better communication between individual clients and their attorneys and ultimately lead

to more competent legal advice. Panel Op. at 24-25. This

strikes me as both implausible and entirely speculative;

it is highly attenuated as a matter of constitutional justification and in any event is completely unsupported

on this record.3
No. 09-4080 37

(...continued) 3

actually successful in accomplishing its stated purpose.” Panel

Op. at 24-25. Keller’s germaneness requirement does not require

close scrutiny of a challenged expenditure of compulsory bar

dues, but it requires something more than mere rational-basis

review, which applies to all laws, starts from a presumption

of constitutionality, and “deems a law valid if any justification

for it may be imagined.” United States v. Skoien, No. 08-3770,

2010 WL 2735747, at *3 (7th Cir. July 13, 2010) (citing Vance v.

Bradley, 440 U.S. 93 (1979)). Keller’s germaneness requirement implements the protections of the First Amendment;

it therefore is not analogous to rational-basis review, as my

colleagues suggest. Panel Op. at 24-25 (“The [germaneness]

standard of review is deferential, as when we review challenged legislation to determine whether it is reasonably

related to a legitimate governmental purpose.”).

The Ninth Circuit’s opinion in Gardner, on which the

panel heavily relies, is long on rhetoric and short on

reasoning. It also misses the whole point of Keller. Gardner

rests its conclusion entirely on lofty truisms about the

importance of lawyers and a naked assertion that the

public “needs to know” about their role in making the

justice system work. From this the court concludes that

the Nevada State Bar’s public-relations campaign is

“highly germane to the purposes for which the State

Bar exists.” Gardner, 284 F.3d at 1043. This is not the

correct legal standard. The pertinent question is not

whether the challenged expenditure is reasonably related to any purpose for which a bar association exists;

that is useless as a decision principle if the point is to

protect free-speech rights in the context of forced bar-
38 No. 09-4080

As the panel observes, Thiel’s alternative holding provides 4

some support for a loose and highly deferential understanding

of the germaneness review required by Keller. Panel Op. at 28-

29. Thiel approved the use of compulsory bar dues for a

variety of programs sponsored by the State Bar of Wisconsin—including a mock-trial competition and awards given

to reporters for law-related writing—but offered no explanation for this conclusion. 94 F.3d at 405 (“All of these [programs],

it seems, are geared towards improving the quality of legal

services in Wisconsin. Under Keller, they are germane and

(continued...)

association membership. The pertinent question—the one

the Supreme Court said is the “guiding standard” for

First Amendment purposes—is whether the challenged

expenditure is reasonably related to one of the constitutionally relevant purposes that justify mandatory bar

membership: regulation of the bar or improving the

quality of legal services. Keller, 496 U.S. at 14. The Ninth

Circuit did not address this question, and it is the only

one that matters. The court made no effort, that is, to

explain how the Nevada State Bar’s expenditure of compulsory bar dues on a public-image campaign for lawyers was “necessarily or reasonably incurred for the

purpose of . . . improving the quality of . . . legal

service[s].” Gardner is unpersuasive. We should not

follow it.

In the end, while the panel has done an exemplary job

of articulating the constitutional principles that govern this case, its application of those principles effectively dilutes them. I have no objection to a “generous” 4
No. 09-4080 39

(...continued) 4

may be funded by compulsory dues, regardless of whether

they are ideologically oriented.”). My colleagues summarily

reaffirm this aspect of Thiel. Panel Op. at 28-29 (Thiel’s “unanimous assessment of the actual germaneness of [the challenged]

activities remains sound.”). This alternative holding in Thiel,

and the panel’s endorsement of it here, reflect an implicit

concern about excessive federal-court involvement in the

affairs of state bar associations. I share that concern. But the

state supreme court’s decision to make bar-association membership mandatory for all lawyers operates as a continuing

burden on their First Amendment rights, which imposes

constitutional responsibilities on the State Bar and makes a

federal-court role inevitable, or at least unavoidable. And in

this context, deference does not have a particularly strong

claim. The State Bar is not (as the Supreme Court observed in

Keller) “the typical government official or agency.” 496 U.S.

at 12.

9-9-10

interpretation of the germaneness requirement. Panel

Op. at 28. But the panel has gone well beyond “generous.”

If a public-image campaign designed to benefit lawyers can be considered germane to improving the legal

services they provide to their clients, then the germaneness standard in this circuit is not merely generous, it

is meaningless. I would rehear this case en banc.