**REVISED** 

# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 50448

**Tony K. McDonald; Joshua B. Hammer; Mark S. Pulliam,**
Plaintiffs

— Appellants **,**

versus **Joe K. Longley,** Immediate Past President of the State Bar of Texas **; Randall O. Sorrels,**  President of the State Bar of Texas **; Laura Gibson,**  Member of the State Bar Boar d of Directors and Chair of the Board **; Jerry C. Alexander,**  M ember of the State Bar Board of Directors **; Alison W. Colvin,**  M ember of the State Bar Board of Directors **,** Defendants

— Appellees

**.**

Appeal from the United States District Court for the Western District of Texas No. 1:19

- CV

- 219

Before **Smith, Willet t**  **,** and **Duncan,** Circuit Judges

**. Jerry E. Smith,**  Circuit Judge **:** Three Texas attorneys sued officers and directors of the State Bar of Texas under 42 U.S.C. § 1983. They allege that the Bar i s engaged in political and ideological activities that a re not germane to its interests in regulating the legal profession and improv ing the quality of le gal services and that therefore, United States Court of Appeals Fifth Circuit 

### FILED July 2 , 2021 Lyle W. Cayce Clerk Case: 20-50448 Document: 00515926585 Page: 1 Date Filed: 07/06/2021No. 20

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2 compelling them to join the Bar and subsidize th o se activities violate s their First Amendment r ights. We vacate in part, render in part, and remand.

I

. A

. State bar associations are of two types : (1) “ mandatory ” and (2) “ vol

un tary. ” Mandatory bars, also known as “ integrated ” bars, require that attorneys join and pay compulsory dues “ as a condition of practicing law in a State. ” Keller v. State Bar of Cal. , 496 U.S. 1, 5 (1990). Voluntary bars do
not. See Ja rchow v. State Bar of Wis. , 140 S. Ct. 1720 , 1720 (2020) (Thomas, J., dissenting from denial of cert iorari ). T hirty

- one states and the District of Columbia have mandatory bars, while most of the others have volun tary bars

. 1
The State Bar of Texas is man datory. See **Tex. Gov ’**  **t Code** § 81.051(b). All licensed Texas attorneys, more than 120,000 as of May 2019, must join the Bar, which “ is a public corporation and an administrative agency ” controlled by the Supreme Court of Texas. Id. § 81.011(a), (c). The Bar serves the following statutorily enumerated purposes: (1) to aid the courts in carrying on and improving the ad

min istration of justice; (2) to advance the quality of legal service s to the public and to foster the role of the legal profession in serving the public; (3) to foster and maintain on the part of those engaged in

1 See Ralph H. Brock, “An Aliquot Portion of Their Dues:” A Survey of Unified Bar Compliance with Hudson and Keller, 1 **Tex. Tech J. Tex. Admin. L.** 23, 24 (2000) ; Leslie C. Levin, The End of Mandatory State Bars , 109 **Geo. L.J. Online** 1, 2 (2020)

. Most states have either a mandatory or voluntary bar, but Cali fornia has switched to a hybrid model in which core functions are performed by a mandatory state bar , while other functions previously performed by its “sections” are now done b y a separate voluntary bar association. **Cal. Bus. & Pro. Code** §§ 6001, 6031.5(a), 6056. Case: 20-50448 Document: 00515926585 Page: 2 Date Filed: 07/06/2021No. 20

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3 the practice of law high ideals and integrity, learning, com pe
tence in public service, and high standards of conduct; (4) to provide proper professional services to the members of the state bar; (5) to encourage the formation of and activities of local bar associations; (6) to provide forums for the discussion of sub jects per tain

ing to the practice of law, the science of jurisprudence and law reform, and the relationship of the state bar to the public; and (7) to publish information relating to the subjects listed in Subdivision (6). Id . § 81.012.
In addition to bei ng required to join the Bar, Texas attorneys are man
dated to pay membership fees. 2 The Bar , which is entirely self

- funded, relies

on membership fees for nearly half of its budget

. 3 The Supreme Court of Texas , in collaboration with the Bar, sets the me mbership fee schedule. See id . § 81.054(a). The current annual dues for active attorneys range from $68 to $235 , depending on how many years the attorney has been licensed . Those on inactive status pay $50. Texas law does not give the Bar carte blanche to spend the member

ship fees however it pleases. The dues may “ be used only for administering the public purposes ” outlined above. Id . § 81.054(d). The State Bar Act for

bids the Bar from using funds to “ in fluenc[e] the passage or defeat of any leg islative measure unless the measure relates to the regulation of the legal

2 Except for emeritus members. Id. § 81.054(b)

3 For the fiscal year ending in May 2018, those fees generated $23 million out of the Bar’s approximately $51 million in revenue. The second most significant source of revenue is from sales of continuing legal education (“CLE”) programs. Case: 20-50448 Document: 00515926585 Page: 3 Date Filed: 07/06/2021No. 20

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4 pro fession, improving the quality of legal services, or the administration of justice. ” Id . § 81.034. And the Bar ’ s Policy Manual recog nizes that “ [t] he expenditure of funds by the State Bar of Texas is limited

. . . as set forth

. . . in Keller , ” 4 a case that we discuss at length infra

. In addition to their required membership in the general Bar A ssocia

tion, Texas attorneys have the option to join a number of subject

- matter

“ sections ” that the Bar maintains. Th o se sections are funded in part by dues paid by attorneys who voluntarily join them 5 and in part by money allocated from the Bar ’ s general fund. 6 Finally, on top of the membership fees , Texas imposes a $65 “ legal services fee ” on certain attorneys. 7 Those funds are collected by the Su

preme Court of Texas and remitted to the Comptroller. Id. § 81.054(c). They are allocated to pay for legal services for the indigent

— half for civil services and half for criminal defense. Id.

4 State Bar of Texas Board of Directors Policy Manual , **State Bar of Texas** § 3.14.01 (2018), https://www.texasbar.com/AM/Template.cfm? Section =Governing _Documents 1 & Template=/CM/ContentDisplay.cfm&ContentID=42429 [hereinafter Policy Manual ]

.
5 See Sections , **State Bar of Texas** (last visited Apr. 21, 2021), https://www.texasbar.com/Content/NavigationMenu/AboutUs/SectionsandDivisions/ SectionsandDivisions1/

6 See **State Bar of Texas** , 2019

- 2020 Proposed Combined Budget 2, https://www.texasbar.com/AM/Template.cfm?Section=Meeting_Agendas_and_Minut es&Template=/CM/C ontentDisplay.cfm&ContentID=43829 (allocating funds from the general fund to sections and volunteer committees).

7 **Tex. Gov’t Code** § 81.054(j). Exempt from the legal services fee are (1) i nac
tive and nonpracticing attorneys, (2) at tor neys over sevent y years old, (3) those who work for the federal, state, or local governments, (4) § 501(c)(3) employees, and (5) out

- of

- state lawyers who do not practice in Texas. Id . § 81.054(k). Case: 20-50448 Document: 00515926585 Page: 4 Date Filed: 07/06/2021No. 20

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5 B

. In carrying out its statutorily enumerated purposes, the Bar under

takes a plethora of initiatives. The plaintiffs o bject to a number of the m , alleging that they are “ political and ideological activities that extend far be

yond any regulatory functions. ” We outline the objected

- to activities here

.

1

. The Bar has a legislative program, through which it lobbies for “ bills drafted by sections of the State Bar. ” The Bar ’ s Policy Manual forbids the Bar from taking a position on proposed legislation unless strict criteria are
met. See Policy Manual § 8.01. 03. Among th o se criteria are that the pro posed legislation (1) “ falls within the purposes, expressed or implied, of the State Bar as provided in the State Bar Act , ” (2) “ does not carry the potential of deep philosophical or emotional division among a substantial segment of the membership of the bar , ” (3) “ is in the public interest, ” and (4) “ cannot be construed to advocate political or ideological positions

. ” Policy Manual § 8.01.03( A ), ( C )

– ( D ), ( G ). In 2019, the Bar lobbied for forty

- seven bills , on subjects ranging from LGBT rights to trusts and estates , that it supposedly determined to have met those criteria . Those measures included efforts to, among other things , (1) amend the Texas Constitution ’ s definition of marriage (SJR 9); (2) create civil unions “ as an alternative to marriage ” (HB 978); (3) alter the proce

dures grandparents must use to obtain access to their grandchildren over parental objections (HB 575); (4) substantively amend Texas trust law (HB 2782); and (5) impose new notification r equire ments on parents who wish to take summer weekend possession of a child under a court order (HB 553)

. The voluntary sections, as distinguished from the Bar as a whole , write and lobby for the bills included in the legislative program. But the Bar, u sing Case: 20-50448 Document: 00515926585 Page: 5 Date Filed: 07/06/2021No. 20

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6 mandatory dues, supports th o se efforts in a number of ways. First, the legis

lative pro gram must be approved by the Bar ’ s board , placing the entire Bar ’ s impri ma tur on it . Second , the voluntary sections are funded in part by the Bar ’ s general fund. And t hird , the Bar funds a Government Relations Depart ment ( “ GRD ” ) , which “ manages and coordinates the State Bar ’ s legislative program

. ” 8

2

. The record reflects that the Bar houses an Office of Minority Affairs ( “ OMA ” ), whose goals incl ude “ serv[ing] minority, women, and LGBT attorneys and legal organi zations in Texas ” and “ enhanc[ing] employment and economic opportuni ties .

. . in the legal profession ” for members of those groups. OMA sponsors “ ongoing forums, projects, programs, and publications ”

— called “ Minority Initiatives ”

— “ dedicated to [its] diversity efforts. ” Though the program ming is focused on furthering diversity relative to certain groups, all Texas attorneys are encouraged to participate. All told, the Bar spends about $500,000 per year on minority affairs.

3

. The Bar engages in , or financially supports , numerous activiti es aimed at making legal services available to the needy . First , i t spends more than $1 million annually to support its Legal Access Division ( “ LAD ” ) , which facilitates pro bono efforts in a wide variety of activities in the legal arena, including immigra tion, veterans’ affairs , and landlord

- tenant disputes

. It

8 Governmental Relations , **State Bar of Texas** (Apr. 21, 2021) , https://w ww.texasbar.com/Content/NavigationMenu/AboutUs/GovernmentalRelation s/default.htm. The GRD also “serves as the State Bar’s liaison to the Texas Legislature and other state and federal governmental entities.” Id. In that capacity, it responds to

re quests for information and assistance by the Texas Legislature and other entities, and reviews thousands of bills each legislative session. Case: 20-50448 Document: 00515926585 Page: 6 Date Filed: 07/06/2021No. 20

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7 “ offers sup port, train ing, publications, resource materials, and more to legal services programs and pro bono volunteers. ” Second, i n support of its pro bono efforts, the Bar maintains a directory of “ volunteer and resource opportunities

. ” 9 The web page appears to direct lawyers to various resources depending on the Bar ’ s perceived needs of the time. For example, as of April 2021, it directed lawyers to volunteering for legal needs related to the COVID

- 19 pandemic (e.g. evictions, unemploy

ment, and domestic problems). For a time in 2019, it directed lawyers to organizations representing asylum

- seekers and illegal aliens

. Third, the Bar funds the Texas Supreme Court ’ s Access to Justice Commission ( “ AJC ” ) , which “ focuses on cutting

- edge initiatives and pilot projects that promote access to justice in Texas

. ” Among other things, it aims to “ increas e resources and funding for access to justice, ” “ develop and implement initiative s designed to expand civil access to justice , ” and pro
mote “ systemic change

. ” One of its mechanism s for achieving th o se aims is lobbying for “ both funding and non

- funding legislation

. ” Finally, as mentioned above, the legal services fee, by statute, is used to fund legal services for the indigent.

4

. The Bar also undertakes a number of miscellaneous activities to which the p laintiffs object. It hosts an annual convention, which sponsors panels, some of which the plaintiffs contend are ideol ogical ly charged

. The Bar funds

c ontinuing l egal e ducation ( “ CLE ” ) programs, some of which the plaintiffs

9 Volunteer and Resource Opportunities , **State Bar of Texas** , https://www.texasbar.com/Content/NavigationMenu/LawyersGiving Back/Volunteer/d efault.htm. Case: 20-50448 Document: 00515926585 Page: 7 Date Filed: 07/06/2021No. 20

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8 aver are similarly charged. And the Bar funds the Texas Bar Journal

.
C

. Recognizing that some members might object to various of its myriad initiat ives, the Bar provides ways for dissenting members to make their dis

agreement s known . Before the expenditure is approved, members can lodge their objections to either the Bar ’ s Board of Directors or the appropri ate committee or section. See, e.g. , Policy Manual §§ 8.01.03(B), 8.01.06(B), 8.01.08(B), 8.01.09(D). Members may also express disapproval at the Bar ’ s annual public hearing on its proposed budget. **Tex. Gov ’**  **t Code** § 81.022(b)

– (c). The ballot box provides another incidental check: Mem

bers vote for the Bar ’ s officers and directors. See generally Policy Manual §§ 1.03 , 2.01.
T he Bar also provides a mechanism for objecting members to obtain a pro rata refund of their membership fee . Specifically, members may file a written objection “ to a pr oposed or actual expenditure .

. . as not within the purposes or limitations ” set forth by the State Bar Act or by Supreme Court precedent. Policy Manual §§ 3.14.01, 3.14.02. T he protesting member may

“ seek refund of a pro rata portion of his or her dues expended, plus interest, ” on the objectionable activity. Id. § 3.14.02. The Bar does not proactively fur nish members with a breakdown of their respective pro rata share s of fund

ing the Bar ’ s chosen pursuits. O bjection s are reviewed by the Executive Director, who “ in consultation with the President, shall have the dis cretion to resolve ” it. Id. § 3.14.03. A refund is the only available remedy

─ an objec

tor cannot prevent the Bar from otherwise pursuing the objected

- to activ ity. If a refund is issued, it is done so only “ for the con venience of the Bar ” : It does not constitute an admission that the expense was im proper. Id. § 3.14.04. If a refund is denied, the objector has no further administrative

recourse. Case: 20-50448 Document: 00515926585 Page: 8 Date Filed: 07/06/2021No. 20

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9 The Bar requires notice of th ose procedure s to be “ published in con

junc tion with any publication or description of the State Bar ’ s budget, legis

lative program, performance measures, amicus briefs, and any other similar policy positions adopted by the State Bar. ” Id. § 3.14.05. Never theless, the Bar has record of only one member

— who is not among the plaintiffs and who lodged the objection after the plaintiffs filed this lawsuit

— using the proce

dure since its adoption in 2005.

D

. The plaintiffs sued under 42 U.S.C. § § 1983 and 1988 on three theo

ries: (1) C ompelling the plain tiffs “ to join, associate with, and financially support the State Bar a s a pre condition to engaging in their chosen profes

sion ” violates their “ rights to free speech and association ” ; (2) in the alter

native, if they can be com pelled to join, requiring them to “ subsidize political and ideological activities that extend bey ond the Bar ’ s core regulatory func

tions ” violates their right to free speech; and (3) related to both of th o se ,
“ [t]he Bar ’ s procedures for sepa rat ing chargeable and non

- chargeable expenses are inadequate to pro tect ” their First Amendment rights

. T he
p laintiffs moved for a preliminary injunction and partial summary judgment on liability. 10
The Bar cross

- moved for summary judgment. 11 It countered with

10 The plaintiffs moved only for partial summary judgment because the scope of relief they planned to seek differed based on the district court’s holding on liability. We address both the summary judgment on liability and the s cope of the relief plaintiffs are entitled to through a preliminary injunction ; we do not have occasion to opine on the full scope of relief to which they may be entitled.

11 The Bar also filed a motion to dismiss, asserting that the original named de fen

dants did not enforce the mandatory bar membership and legal services fee. In response, the plaintiffs filed an amended complaint adding additional defendants to address tho se concerns. The district court dismissed the Bar’s motion without prejudice, and the Bar Case: 20-50448 Document: 00515926585 Page: 9 Date Filed: 07/06/2021No. 20

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10 three principal points. First, i t contended that Supreme Court pr ecedent

— specifically Keller and Lathrop v. Donohue , 367 U.S. 820 (1961) (plurality)

— foreclose s the pl aintiff s ’ claim that being compelled to join the bar violates the First Amendment. Second, the Bar asserted that t he challenged expendi

tures a re constitutionally permissible as “ necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of

. . . legal service[s]. ” And third, the Bar maintained that its refund pro
cedures a re constitutionally a dequate.
The district court denied the plaintiffs ’ motions and granted summary judgment to the Bar. The court held that Lathrop and Keller remain binding in spite of Janus v. American Federation of State, County, & Municipal Em

ployees, Council 31 , 138 S. Ct. 2448 (2018) , and that Lathrop and Keller fore

close the p laintiffs ’ contention that being forced to join the bar violates the First Amendment

. The court further determined that all of the challenged Bar expenses passed constitutional muster under Kel ler , “ because they fur

ther[ed] Texas ’ s interest in professional regulation or legal

- service quality improvement. ” Finally, the court rejected the p laintiffs ’ challenge to the refund procedures, concluding that they a re constitutionally adequate. The court entered a “ take nothing ” judgment, and the plaintiffs appeal.

II

. Because “ [t] his court has a continuing obligation to assure itself of its

own jurisdiction ” 12 before addressing the merits, we must determine wheth

e r the Tax Injunction Act ( “ TIA ” ) stripped the district court of jurisdic tion. Our review is de novo

. Washington v. Linebarger, Goggan, Blair, Pena & Samp

does not challenge the propriety of that dismissal on appeal.

12 United States v. Pedroza

- Rocha , 933 F.3d 490, 493 (5th Cir. 2019) (per curiam), cert. denied, 140 S. Ct. 2769 (2020). Case: 20-50448 Document: 00515926585 Page: 10 Date Filed: 07/06/2021No. 20

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11 son, LLP , 338 F.3d 442, 444 (5th Cir. 2003).
The TIA provides that “ district courts shall not enjoi n, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. ” 28 U.S.C. § 1341. 13 In other words, “ the [TIA] is a broad jurisdictional imped i ment to federal court interference with the administration of state tax sys tems. ” Home Builders Ass ’ n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998) (quotation marks omitted). The TIA does not, however, imp ede federal courts ’ review of regulatory fees. See id. Therefore, to de ter

mine our jurisdiction , we must de cide whether the membership fee and the l egal s ervices f ee are taxes o r, instead, whether they are fees.

“ Whether a charge is a fee or a tax is a question of federal law. ” Neinast v. Texas , 217 F.3d 275, 278 (5th Cir. 2000). Alt hough the label given to a particular outlay “ has no bearing on the resolution of th e question, ” Home Builders , 143 F.3d at 1010 n.10, we may take notice of how an expense is treated by the state ’ s courts, see Lipscomb v. Columbus Mun. Separate Sch. Dist. , 269 F.3d 494, 500 n.13 (5th Cir. 2001). Generally, “ a broad construc

tion of ‘ tax ’ is necessary to honor Congress ’ s goals in promulgating the TIA. ” Henderson v. Stalder , 407 F.3d 351, 356 (5th Cir. 2005).

“ [T]he line between a ‘ tax ’ and a ‘ fee ’ can be a blurry one. ” Home Builders , 143 F.3d at 1011 (quotation marks omitted) . Indeed, “ the distinc

tion between a tax and a fee is a spectrum with the par adigmatic fee at one end and the paradigmatic tax at the other. ” Washington , 338 F.3d at 444 (quo tation marks omitted). But we have enunciated some workable distinc

13 Similarly, “[t]he Anti

- Injunction Act, 26 U.S.C. § 7421(a), bars any ‘suit for the purposes of restraining the assessment or collection of any tax.’” CIC Servs., LLC, v. IRS , 141 S. Ct. 1582, 1586 (2021). Case: 20-50448 Document: 00515926585 Page: 11 Date Filed: 07/06/2021No. 20

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12 tions. First, “ t he classic tax sustains the essential flow of revenue to the gov

ernme nt, while the classic fee is linked to some regulatory scheme. ” Home Builders , 143 F.3d at 1011. Second, “ [t] he classic tax is imposed by a state or municipal legislature, while the classic fee is imposed by an agency upon those it regulates. ” Id. And third, “ [t] he classic tax is designed to provide a benefit for the entire community, while the classic fee is designed to raise money to help defray an agency ’ s regulatory expenses

. ” Id.
The membership fee s are “ classic fees. ” First, t he y are linked to the regulat ion of the legal profession, not to generating revenue for the govern

ment. Texas law requires that Bar funds “ be used only for administering the public purposes provided by ” the State Bar Act. **Tex. Gov ’**  **t Code** § 81.054(d). In fact, t he Sup reme Court of Texas must distribute the fees to the Bar only for funding expenditures to pursue those ends. See id

. § 81.054(c). Second, t he membership fees are imposed neither by a legis la

ture nor on the entire community. A lthough a statute authorize s charging the fees , the process of setting and collecting those fees is left to the Texas Supreme Court and the Bar. Se e id. § § 81.022, 81.054(a) , (c)

. Furthermore, the dues are paid only by those regulated by the Bar

— licensed Texas attorneys

— “ not the public at large , ” indicating they are a fee. Nei nast , 217 F.3d at 278. Third and finally, the membership fees defray the Bar ’s
costs. The Bar is entirely self

- funde d, and the mandatory dues amount to nearly half of its annual revenue

. The l egal s ervices f ee is also a fee, albeit a less paradigmatic one. Like the membership fee , the l egal s ervices f ee is imposed only on the legal pro

fession, “ not the public at large. ” Id. And the f ee is linked to the regulation of the legal profession , given that it s purpose is to ensure ade quate funding of “ basic civil legal services to the indigent and legal repre sentation and other defense services to indigent defendants in criminal cases

. ” **Tex. Gov ’**  **t Code**  § 81.054(d)

. In other words, its purpose is not to raise revenue but to Case: 20-50448 Document: 00515926585 Page: 12 Date Filed: 07/06/2021No. 20

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13 ensure that members of the legal profession are able to provide a particular legal service

. On the other hand, unlike the member ship fee, the le gal services fee is imposed directly by the legislature

. Compare id. § 81.054( a ) , with id. § 81.054(j). But th at does not outweigh the other factors. Since neither the membership fee nor the legal services fee is a tax, the TIA does not deprive the federal courts of jurisdiction . We therefore turn to the merits.

III

. We first analyze the plaintiffs’ claim that compelling them to join the Bar violates the First Amendment. The Supreme Court has twice opined on whet her mandatory bar s violate the First Amendment. We discuss th o se cases, Lathrop v. Donohue , 367 U.S. 820 (1961) (plurality) , and Keller v. State Bar of California , 496 U.S. 1 (1990), to determine whether the plaintiffs ’ claim survives

. 14

14 Since Lathrop and Kell er were decided, the Supreme Court’s First Amendment caselaw has changed dramatically. Both cases drew from the then

- existing jurisprudence on the First Amendment implications of mandatory union dues, but that jurisprudence has evolv ed. Keller , in partic ular, rested almost exclusively on Abood v. Detroit B oard of Edu

cation , 431 U.S. 209 (1977), which the Court overruled in Janus , 138 S. Ct. at 2486. Those changes, and Janus in particular, cast doubt on Lathrop and Keller

. See Jarchow , 140 S. Ct. at 172 0 (Thomas, J., dissenting from denial of certiorari). Contra Janus , 138 S. Ct. at 2498 (Kagan, J., dissenting) (contending that Janus did not call Keller into question). But “the Supreme Court abrogates its cases with a bang, not a whimper, and it has

ne ver revisited” either Lathrop or Keller

. Tex. Democratic Party v. Abbott , 961 F.3d 389, 405 (5th Cir. 2020). So, despite their “increasingly wobbly, moth

- eaten foundations,” State Oil Co. v. Khan , 522 U.S. 3, 20 (1997) (cleaned up) , Lathrop and Keller remain binding. Because they have “direct application in [this] case,” we apply them, “leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Exp., Inc. , 490 U.S. 477, 484 (1989). Wi th that said, Lathrop ’s and Keller ’s weakened foun dations counsel against expanding their reach as we consider questions they left open. Case: 20-50448 Document: 00515926585 Page: 13 Date Filed: 07/06/2021No. 20

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14 In Lathrop , 367 U.S. at 827

– 28 , the Court considered whether manda

tory bar mem bership necessarily violates the right to free dom of association. The Wiscon sin Bar, the Lathrop plaintiff alleged, “ express [es]

. . . opinion [s] on legis lative matters ” and “ utilizes its property, funds and employees for the pur poses of influencing legislation and public opinion toward legis

lation

. ” Id. at 827. Therefore, he contended “ that he [could not] constitu

tionally be com pelled to join and give support to ” th e Bar

. Id. The Court rejected the plaintiff ’ s claim for two reasons. First, it noted that the plaintiff ’ s “ compulsory enrollment imposes only the duty to pay dues ” ; his involuntary membership did not require any other participation

. Id. at 827

– 28. Seco nd, the Court found that the bar’s activities at issue were almost entirely limited to “ elevating 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 ” Id. at 843. Though that bar was engaged in legislative activity, that activity was “ not the major activity of the State Bar, ” id. at 839, and , furthermore, it was limited to bills pertinent to the legal profession for which there was “ substantial unanimity , ” i d. at 83 4

– 38. After deciding that compelling the plaintiff to pay dues to such a bar association did not violate the freedom of association , the Lathrop Court , not

ing the paucity of the record, declined to decide whether “ the use of his money for caus es which he opposes ” violated his right to free speech

. Id.
at 845. Three decades later, Keller reached that issue

. Like the Lathrop plaintiff, the Keller plaintiff s claimed that compelling their financial support of political activities violated their rights to freedom of speech and freedom of association. Keller , 496 U.S. at 5

– 6. T he Court held that state bar associations may constitutionally charge mandatory dues
to “ fund activities germane ” to “ the purpose [s] for which compelled associ

a tion was justified , ” i.e. , “ regulating the legal profession and improving the Case: 20-50448 Document: 00515926585 Page: 14 Date Filed: 07/06/2021No. 20

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15 quality of legal services

. ” Id. at 13

– 14 . But state bar associations c ann ot con

stitutionally use mandatory dues to “ fund activities of an ideological nature which fall outside of those areas of activity

. ” Id. at 14. Although it held that at least some complained

- of activities were germane, t he Court remanded for the lower c ourts to determine exactl y which of the challenged activities were

non
- germane. 15 After deciding the free speech issue, the Court turned briefly to free

dom of association. The Keller plaintiffs contended that “ they cannot be

com pelled to associate with an organization that engages in political or ideo

logical activities beyond those for which mandatory financial support is justi

fied under the principles of Lathrop and Abood [ v. Detroit Board of Education , 431 U.S. 209 (1977) ]

. ” Id. Despite noting that th e plaintiffs’ claim “ appears to implicate a much broader freedom of associ a tion claim than was at issue in Lathrop , ” i d. at 17 , the Court did not resolve that broader claim , see i d.
So where do Lathrop and Keller leave us ? Lathrop held that lawyers may constitutionally be mandated to join a bar association that solely regu

lates the legal profession and improves the quality of legal services

. Keller identified that Lathrop did not decide whether lawyers may be constitu

tionally mandated to join a bar association that engages in other, non

germane activities. Nor did Keller resolve that question. 16 Therefore, we

15 See Keller , 496 U.S. at 15

– 16 (noting that “[c]ompulsory dues may not be expended to endorse or advance a gun cont rol or nuclear weapons freeze initiative,” both of which the plaintiffs asserted the s tate b ar did).

16 We join the Ninth and Tenth Circuits in reading Lathrop and Keller as leaving that question unresolved. See Schell v. The Chief Justice & Justices of the Oklahoma Supreme Court , No. 20

- 6044, 2021 WL 2657106, at *11 (10th Cir. June 29, 2021); Crowe v. Or. State Bar , 989 F.3d 714, 727

– 29 (9th Cir. 2021), petition for cert. filed (May 27, 2021) (No. 20

- 1678).” Case: 20-50448 Document: 00515926585 Page: 15 Date Filed: 07/06/2021No. 20

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16 must both decide that issue and determine whether the Texas Bar is engaged in non
- germane activities.

A

. To determine whether comp elling the plaintiffs to join a bar that engages in non

- germane activities violates their freedom of association , we must decide (1) whether compelling the plaintiffs to join burdens their rights and , (2) if so, whether it is nevertheless justifie d by a su fficient state interest.

1

.
“ [F]reedom of association is never mentioned in the United States Constitution. ” 17 Instead, it is implicit in the other rights listed in the First Amendment

. See Roberts v

. U.S. Jaycees , 468 U.S. 609, 618 (1984). As rel e
vant here, “ [a] n individual ’ s freedom to speak

. . . could not be vigorously
pro tected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. ” 18 Be

cause the right to freedom of association is part of the freedom of speech,

“ [t]o determine whether a group is protected by the First Amendment ’ s ex
pressive associational right, we must determine whether the group engages in ‘ expressive association

. ’” Boy Scouts of Am. v. Dale , 530 U.S. 640, 648 (2000). For groups that engage in expressive association , the “ [f]reedom of association .

. . plainly presupposes a freedom not to associate. ” Robert s , 468 U.S. at 623. Th o se g roups have a right to restrict their membership ,

17 Amy Gutmann, Freedom of Associ ation: An Introductory Essay , in **Freedom of Ass**  **’ n**  3, 9 (Amy Guttman ed. 1998); see **U.S. Const.** amend. I.

18 Roberts , 468 U.S. at 622; see also N AACP v. Alabama ex rel. Patterson , 357 U.S. 449, 460 (1958) (“Effective advocacy of both public and private poin ts of view, particularly controversial ones, is undeniably enhanced by group association .

. . .”). Case: 20-50448 Document: 00515926585 Page: 16 Date Filed: 07/06/2021No. 20

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17 because the membership is the message. 19 Individuals have an analogous right to “ eschew association for expressive purposes. ” Janus , 138 S. Ct.
at 2463. That right is part and parcel of the “ cardinal constitutional com

mand ” that the government may not compel “ individuals to mouth support for views they find objectionable. ” Id. 20
Based on th at , compel ling a lawyer to join a bar association engaged in

non
- germane activities burdens his or her First Amendment right to freedom of association . Such a bar association would invariabl y be engaged in expres

sive activities. Even bar associations that engage in only germane activities undertake some expressive activities; for example, proposing an ethical rule expresses a view that the rule is a good one, and commenting on potential changes to the state ’ s cou rt system, as the bar in Lathrop did, expresses a view that such a reform is a good or bad idea. Bar associations that also engage in non

- germane activities will almost certainly be engaging in additional expres sive activities that “ support

. . . a par ticular conception of the good life or controversial ideology of the good society. ” Id. And , when a bar association does so, part of its expressive mes

sage is that its members stand behind its expression. The membership is part of the message. Com pel ling member ship, therefore, compels support of that message. If a mem ber disagrees with that “ conception of the good life or

con troversial ideol ogy, ” then compelling his or her membership infringes on

19 See Christian Legal Soc ’y Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez , 561 U.S. 661, 680 (2010) (“Who speaks .

. . colors what concept is conveyed.”).

20 “W hen membership of an association requires the individual to give sup port to a particular conception o f the good life or controversial ideology of the good society, the freedom to refuse association is clearly fundamental to the individual’s freedom to live authen tically in accordance with his/her own ethical and political beliefs. ” Stuart White, Trade U nionism in a Liberal State , in **Freedom of Ass ’**  **n ,**  supra , at 330, 345. Case: 20-50448 Document: 00515926585 Page: 17 Date Filed: 07/06/2021No. 20

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18 the freedom of association. Id.

2

. But that does not necessarily mean the plaintiffs are entitled to relief.

“ The right to associate for expressive purposes is not

. . . absolute. ” Roberts , 468 U.S. at 623. I n its free dom

- of

- association cases , the Court has generally applied “ exacting

. . . scrutiny , ” u nder which “ mandatory associations are
per missible only when they serve a ‘ compelling state interest that cannot be achieved through means significantly less restrictive of associational free

d oms. ’” Knox v. Serv. Emps. Intl Union, Loc. 1000 , 567 U.S. 298, 310 (2012) (quoting Roberts , 468 U.S. at 623). Compelled membership in a bar association that is engaged in only germane activities survives th at scrutiny. We know th at both because Lathrop held that compelled membership in such a bar did not violate free

dom of association and because of the more recent statement in Harris v. Quinn , 573 U.S. 616, 655

– 56 (2014) : S tates “ have a strong interest in allo

cat ing to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices ” as well as of regulating the legal protection and improving the quality of legal services. Id. And , for that reason, Keller , which allowed compelled subsi dization 21 of germane activ ities, “ fits comfortably within the [exacting scrutiny] framework. ” Id. at 655. Compelled membership in a bar association that engages in non

germane activities, on the other hand , fails exacting scrutiny. Knox v. Serv. Emps. Int ’ l Union, Loc. 1000 , 567 U.S. 298, 310 (2012) (quoting Roberts ,

21 Exacting scrutiny is applied to both freedom

- of

- association and compelled

subsidy claims. See, e.g. , Janus , 138 S. Ct. at 2465 (compelled subsidy); Dale , 530 U.S. at 648 (freedom of a ssociation)

. Case: 20-50448 Document: 00515926585 Page: 18 Date Filed: 07/06/2021No. 20

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19 468 U.S. at 623). P laintiffs suggest that, instead of exacting scrutiny, strict scrutiny should apply. Under that standard, the government must show that its action is “narrowly tailored” to “further compelling governmental inter

ests.” Johnson v. Califor nia , 543 U.S. 499, 505 (2005) (cleaned up). Because the bar’s mandatory membership “cannot survive under even the more permissive standard,” we do not decide whether strict scrutiny is nec essary. See Janus , 138 S. Ct. at 2465. Although states have interests in allocating the expenses of regulating the legal profession and improving the quality of legal services to licensed attorneys, they do not have a compelling interest in having al l licensed attorneys engage as a group in other, non

- germane activities. Moreover, there are other “ means signif i cantly less restrictive of asso

ciational freedoms ” to achieve the state ’ s legiti mate interests

. Knox , 567 U.S. at 310. Almost twenty states

— including some of the largest legal markets , such as New York, Illinois, and Pennsylvania

— directly regulate the licensing and disciplining of attorneys. See Brock, supra , at 24 n.1 (not listing those states as having mandatory bars). The Bar cannot reasonably suggest that those states are unable to reg
ulate their legal professions adequately

. Nor does the Bar have to cede its ability to engage in non
- germane activities entirely

— as California has shown, a hybrid model is possible.
Th erefore, the plaintiffs are entitled to summary judgment on their freedom

- of

- association claim if the B ar is in fact engaged in non

- germane activities.

B

. The purposes justifying compelled association in a bar association are

“ regulating the legal profession ” and “ improving the quality of legal ser

vices

. ” Keller , 496 U.S. at 13. For activities to be germane, they must be Case: 20-50448 Document: 00515926585 Page: 19 Date Filed: 07/06/2021No. 20

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20 “ nec essarily or reasonably incurr ed for ” those purposes. Id. at 14. The plain tiffs contend that all “ activities of a ‘ political or ideological ’ nature ” necessarily are non

- germane. That misses the mark

. Keller said man da tory dues cannot be used to “ fund activities of an ideologic al nature which fall outside of those areas of activity

. ” Id. (emphasis added). Though later deci sions have framed Keller somewhat as these plaintiffs do, 22 none of th em pur ported to alter Keller ’ s standard, which contemplates that some political or ideological activities might be ge r man e. With that in mind, we turn to “ [t]he difficult question ” of determining whether each respective challenged activ ity is germane. Id.

1

. The Bar ’ s legislative program is neither entirely germane nor w holly

non
- germane. The plaintiffs advocate a bright line rule that any legislative lobbying is non

- germane. But such a rule is foreclosed by Lathrop and Keller

. In Lathrop , 367 U.S. at 836

– 37, the Court identified no First Amendment vio

lation despite t he Wisconsin bar ’s lobbying for various pieces of legislation regarding the state court system, attorney compensation, and other matters related to the legal profession

. And Keller , 496 U.S. at 15, highlighted that lobbying is ger mane whe re “ officials and members of the Bar are acting

essen tially as pro fessional advisers to those ultimately charged with the regu

22 See, e.g. , Harris , 573 U.S. at 655 (describing Keller as holding “that members of this bar could not be required to pay the portion of bar dues used for political or ideological purposes but that they could be required to pay the portion of the dues used for activities connected with proposing ethical codes and disciplining bar members”); Johanns v. Live

stock Mktg. Ass’n , 544 U.S. 550, 558 (2005) (“[W]e have invalidated the use of the com

pulsory fees to fund speech on political matters.” (citing Keller )); Bd. of Regents of Univ. of Wis. Sys. v. Southworth , 529 U.S. 217, 231 (2000) (“[L]awyers could not, however, be required to fund the bar association’s own political expression.” (citing Keller , 496 U.S. at 16)). Case: 20-50448 Document: 00515926585 Page: 20 Date Filed: 07/06/2021No. 20

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21 lation of the legal profession

. ” At the same time, the scope of the Bar ’ s legis

lative program belies its contention that every s ingle bill it has lobbied for is germane to regulating the legal profession or improving the quality of legal services

. Keller did not lay down a test to determine when lobbying is germane and when it is not, acknowledging that the dividing line would “ no t always be easy to discern. ” Id. at 16. Instead, it identified “ advanc[ing] a gun con

trol or nuclear weapons freeze initiative ” and “ proposing ethical codes ” as the book ends of the spectrum and left it to lower courts to work out inter

mediate cases. We must do so now. Except as stated below, a dvocating changes to a state ’ s substantive law is non

- germane to the purposes identified in Keller . Such lobbying has nothing to do with regu lating the legal profession or improving the quality of legal service s. Instead, those efforts are directed entirely at changing the law governing cases, dis putes, or transactions in which attorneys might be involved

. Lobbying for legis lation regarding the functioning of the state ’ s courts or legal system writ large, on the other hand, is germane. So too is advocating for laws governing the activities of lawyers qua lawyers

. 23

23 Lathrop ’s description of the topics on which the Wisconsin Bar took positions is illustrative of the type of lobbying that is germane: The State Bar, through its Board of Governors or Executive Com mit

tee, has taken a formal position with respect to a number of questions of leg islative policy. These have included such subjects as an increase in the salaries of State Supreme Court justices; making attorneys notaries pub lic; amending the Federal Career Compensation Act to apply to at tor neys employed with the Armed Forces the same provisions for special pay and promotion available to members of other professions; improving pay scales of attorneys in state service; court reorganization; extending per son al jurisdiction over nonresidents; allowing the recording of unwit nessed con

Case: 20-50448 Document: 00515926585 Page: 21 Date Filed: 07/06/2021No. 20

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22 Applied to the Bar ’ s 2019 legislative program, for example, th at means that some lobbying was germane, but most was not. Many of the bi lls the Bar supported relate to substantive Texas law and are wholly disconnected from the Texas court system or the law governing lawyers ’ activities. For exam

ple, the Bar ’ s lobbying to amend the Texas Constitution ’ s definition of mar

riage and create c ivil unions is obviously non
- germane. 24 The Bar ’ s presum
ably less

- contro versial proposed substantive changes to Texas family law are equally non

- germane. The Bar ’ s lobbying for the “ creation of an exemption regarding the appoint ment of pro bono volunteers, ” on the other hand, is ger

mane , because it relates to the law governing lawyers. I ts lobbying for changes to Texas trust law is germane to the extent the changes affect law

yers ’ duties when serving as trustee s , and non

- germane to the extent the changes do not.

veyances; use of deceased partners’ names in firm names; revi sion of the law governing federal tax liens; law clerks for State Supreme Court jus

tices; curtesy and dower; securi ties transfers by fiduciaries; juris diction of county courts over the administration of inter vivos trusts; spe cial appro

priations for research for the State Legislative Council. Lathrop , 367 U.S. at 836

– 37 (citations omitted). Those positions, with th e possible excep

tions of “curtesy and dower , ” “extending personal jurisdiction over nonresidents,” and “federal tax liens,” all relate to the state’s court system or the activities of lawyers. That type of lobbying is germane. In addition to its formall y taken positions, the Wisconsin bar set up a group to address federal legislation affecting “the practice of law, or lawyers as a class, or the jur is

dic tion, procedure and practice of the Federal courts and other Federal tribunals, or cre a
tion of new Federal courts or judgeships affecting this state, and comparable subjects.” Id. at 838. Announcing positions on those topics would also pass the germaneness test.

24 The Bar contends that its lobbying was germane because “seeking to amend or repeal unconstitutional laws benefits the legal profession and improves the quality of legal services because it reduces the risk that lawyers, their clients, members of the publi c, or government officials will rely on laws that judicial decisions have rendered invalid.” But Keller does not afford the Bar a roving commission to advocate for legislation to “amend or repeal unconstitutional laws” or “clean up legal texts.” Case: 20-50448 Document: 00515926585 Page: 22 Date Filed: 07/06/2021No. 20

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23 What is important, however, is that some of the legislative program is

non
- germane. The Bar attempts to salvage the program by maintaining that only its voluntary sections engage in lobbying and that therefore plaintiffs are not compe lled to associate with th o se initiatives. But , by the Bar ’ s own admission, “ [n]o voluntary section may assert a position regarding legisla

tive, judicial, or executive action unless it has first obtained permission ” from the Bar ’ s Board of Directors. See Policy Manual § 8.01.06. Th o se positions have the imprimatur of the entire Bar. Moreover, even if the subject

- matter sections undertake the direct

lobbying expenses, the Bar still uses mandatory dues to fund those sections directly and to pay for the G RD, which reviews the sections ’ proposals. Th at too ties the entire Bar to the program. In sum, some of the legislative program is non

- germane, so com pelling the plaintiffs to join an association engaging in it violates th e ir free dom of association.

2

. The Bar ’ s various diversity initiatives through OMA , though highly ideologically charged, are germane to the purposes identified in Keller

. The plaintiffs contend that OMA ’ s diversity initiatives are “ highly ideological , ” because the y support the approach of “ having programs targeted at certain individuals based on their race, gender, or sexual orientation ” and “ people of good faith .

. . disagree sharply about the merits of such programs. ” The plain tiffs are certainly r ight on th at point

— a ffirmative action and other identity

- based programs, in contexts ranging from contract bidding to higher education, have spawned sharply divided pub lic debate and widespread, con

tentious litigation. 25 Legislation has been introduced in Congress to address

25 See, e .g., Schuette v. Coal. to Defend Affirmative Action, Integration & Immi grant Rights & Fight for Equal. by Any Means Necessary (BAMN) , 572 U.S. 291 (2014); Parents Case: 20-50448 Document: 00515926585 Page: 23 Date Filed: 07/06/2021No. 20

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24 a number of race

- based issues, 26 and litigation remains pending challenging several diversity

- justified initiatives

. 27 In other words, th at issue is a “ sensi

tive political topic[ ] ” that is “ un doubt edly [a] matter[] of profound value and concern to the public. ” Janus , 138 S. Ct. at 2476 (cleaned up)

. But , despite the controversial and ideological nature of th o se diversity initiatives , they are germane to the purposes identified by Keller

. They are aimed at “ creating a fair and equal legal profession for minority, women, and LGBT attorneys, ” which is a form of regulating the legal profession. And the Bar contends th at those initiatives “ help to build and maintain the pub

lic ’ s trust in the legal profession and the judic ial process as a whole , ” which is an improvement in the quality of legal services

. The germaneness test does not require that there be unanimity on the Bar ’ s position on what best regulates the legal profession

— that is typically for the Bar to decide

. 28 To take a non

- controversial example, the Bar ’s advo

cating a particular ethical rule is germane no matter how strenuously an attor

Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1 , 551 U.S. 701 (2007); Grutter v. Bolling er , 539 U.S. 306 (2003); Gratz v. Bollinger , 539 U.S. 244 (2003); Adarand Constructors, Inc. v. Pena , 515 U.S. 200 (1995).

26 See, e.g. , Commission to Study and Develop Reparation Proposals for African

Americans Act, H.R. 40, 116th Cong. (2019); Commission to Study and Develop Repa ra
tion Proposals for African

- Americans Act, S. 1083, 116th Cong. (2019); George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong. (2020).

27 See, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Har vard Coll. , 980 F.3d 157 (1st Cir. 2020), petition for cert. filed (Feb. 25, 2021) (No. 20

- 1199).

28 But t here are limits. Certain ideologically charged activities might be so ten u
ously related to the legal profession that any argument they are germane would be pre

textual. In holding that the diversity initiatives are germane, we do not give the Bar carte blanche to engage in any ideological activities so long as they have some sophistic argument the activities are germane. We just identify that the d iversity initiatives are not so tenuously connected to the purposes identified in Keller , and that therefore their ideologically charged nature does not defeat their germaneness. Case: 20-50448 Document: 00515926585 Page: 24 Date Filed: 07/06/2021No. 20

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25 ney might disagree with its propriety . The same principle applies here. In sum, the diversity initiatives are “ activit ies of an ideological nature which fall [in]side ” the areas identified by Keller , 496 U.S. at 14. Given that those activities are germane under Keller , they are not a basis for granting summary judgment for the plaintiffs. 29

3

. Most , but not quite all, of t he Bar ’ s activities aimed at aiding the needy are germane. Specifically, (1) t he LAD, (2) the Bar ’ s directory of volunteer and resource opportunities, and (3) the legal services fee solely support pro bono work. Th at is germane to both regulating the legal profession and im

prov ing the quality of legal services. Legal aid and pro bono programs focus on providing legal counsel to millions of Texans who cannot afford it and would otherwise be forced to proceed pro se

. Th is improves the quality of legal services avail able to low

- income Texans, given that they would other

wise have no legal services at all.
Such initiatives also aid Texas courts, because decreas ing the number of pro se litigants reduces the administr ative burdens those litigants place on Texas courts. Moreover, legal aid and pro bono efforts help lawyers to “ fulfill [ their] ethical responsibility to provide public interest legal service. ” 30 The Supreme Court has suggested that fund ing legal aid and encouraging pro bono

29 We doubt it would be constitutionally permissible , under Janus , to compel the plaintiffs to join an association taking the Bar’s stances on those ideologically charged issues. But Keller binds us as the caselaw that is most directly applicable.

30 **Tex. Disciplinary R. Pro. Conduct** 6.01 cmt. 5; see also id . preamble ¶ 6 (“A lawyer should render public interest legal service.

. . . The provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer .

. . .”); **Tex. State Bar Bd. of Dirs., Pro Bono Resolution** (2000) (“[E]ach Texas att orney should aspire to render at least 50 hours of legal services to the poor each year

. . . .”). Case: 20-50448 Document: 00515926585 Page: 25 Date Filed: 07/06/2021No. 20

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26 service are permissible end s for a man da tory bar to pursue, 31 and our sister circuits appear to agree. 32 The plaintiffs ’ main complaint with th o se programs seems to be that they disa gree with the Bar ’ s choice of legal aid organizations to support , par
ticularly in the context of immigration. Specifically, they contend that facili

tating representation of aliens “ is itself a highly ‘ substantive ’ and ‘ ideological activity ’” that “ squar ely aligns the Bar with one view of a polit i cally charged national debate. ” But a “ lawyer ’ s representation of a client .

. . does not

con sti tute an endorsement of the client ’ s political, economic, social or moral views or activities

. ” 33 It follows that there is no reason to believe that facili

tating lawyers ’ representation of aliens in navigating immi gration laws consti

tutes an endorsement of any particular viewpoint about those statutes . And structurally, in cases where the federal govern ment is a party, it is unsurpris

ing that only one side of that “ v ” needs pro bono assistance.
I n any event, LAD ’ s directory merely provides infor mation for attor

neys interested in such matters to connect with related organ i zations , and LAD p rovides pro bono support for groups touching on a wide array of legal

31 See Lathrop , 367 U.S. at 840

– 43 (observing most of the Wisconsin Bar’s political activities, which included support for legal aid, “serve the function .

. . of elevating 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”).

32 See, e.g. , Schneider v. Colegio de Abogados de P.R. , 917 F.2d 620, 626, 631 (1st Cir. 1990) (endorsing mandatory dues to support “legal aid services”); Levine v. Heffer nan , 864 F.2d 457, 462 & n.4 (7th Cir. 1988) (noting that Lathrop indicated that “helping [to] establish legal aid systems” was an “important activit[y] that the bar engaged in”); Gibson v. Fla. Bar (Gibson I) , 798 F.2d 1564, 1569 n.4 (11th Cir. 1986) (“Accept able areas for Bar lobbying would include .

. . budget appropriations for the judiciary and legal aid .

. . .”).

33 **Tex. Disciplinary R. Pro. Conduct** 6.01 cmt.4. If it did, no attorney would want to represent an accused murderer or child molester. Case: 20-50448 Document: 00515926585 Page: 26 Date Filed: 07/06/2021No. 20

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27 disciplines. 34 The plaintiffs do not allege , and the record does not sup port, that LAD reserves those resources only for low

- income Texans with cer tain political views or those who are pursuing certain ideological causes. AJC is more complicated, because unlike LAD, the resources page, and the legal services fee, AJC’s activities are not entirely cabin ed to making legal representation more available to low

- income Texans. To be sure, most of its activities are so directed, 35 and to the extent the Bar is supporting AJC activi ties limited to helping low

- income Texans access legal services, it is germane. But some of AJC ’ s activities include lobbying for changes to Texas sub stan tive law designed to benefit low

- income Texans. 36 Th o se may be sal

u tary activities. But they are aimed at making substantive Texas law more favorable to low

- income Texans, no t at “ regulating the legal profes sion ” or

“ improving the quality of legal services, ” so they are non

- germane under Keller . Therefore, the Bar ’ s funding of the AJC is non

- germane.

4

. The miscellaneous activities

— hosting an annual convention, running CLE programs, and publishing the Texas Bar Journal

— are all germane. We

34 For example, LAD also provides resources for pro bono organizations seeking to assist Texas veterans, help with tax issues, support criminal defense, or address improper conduct by attorneys.

35 For example, the AJC lobbying for funding for civil legal services, creating pro bono opportunities for law students, and providing training for attorneys are all mere ly supporting pro bono work. And its efforts to help the Supreme Cour t of Texas make Texas courts more assessable and navigable to low

- income Texans, a nd creating “pro se forms and toolkits” improve the quality of legal services.

36 For example, AJC “supported two enacted bills that made it easier for people to pass their money and their home outside probate,” supported amending the Texas Prop

erty Code to “limit dissemination of eviction information,” and supported regulations of “w rap
- around loans.” Case: 20-50448 Document: 00515926585 Page: 27 Date Filed: 07/06/2021No. 20

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28 explain why.
The Bar ’ s annual convention and CLE offerings help regulate the legal profession and improve the quality of legal services. Both programs assist attorneys in fulfilling requirements designed to ensure that they main

tain the requisite knowledge to be competent practitioners. See, e.g. , **Tex. Disci**  **plin ary R. Pro** 

**. Conduct**  1.01 cmt. 8. The p laintiffs ’ com
p laint is that some of the convention panels and CLE courses are ideological ly charged . Probably so. But that is not the test under Keller . And m oreover, any objec tionable CLE and annual convention offerings are only one part of a large, varied catalogue, and the Bar includes disclaimers indicating that it is not endorsing any of the views expressed

. T ha t is enough to satisfy Keller

. 37
The Texas Bar Journal publishes information related to regulat ing the profession and improving legal service s. Such information includes, among other things, (1) notices regarding disciplinary proceedings against Bar mem

bers, see **Tex. R. Disciplinary P.** 6.07; (2) announce ments of amend

ments to evidentiary and procedural rules, see **Tex. Gov ’**  **t Code** § 22.108(c) ; id . § 22.109(c); (3) “ public statements, sanctions, and orders ” issued by the State Commission on Judicial Conduct, see id . § 33.005(e) ; and (4) articles “ devoted to legal matters and the affairs of the [ Texas ] Bar and its members, ” **Tex. State Bar R.** art. IX. Moreover, the Journal pur
ports to feature articles advancing various viewpoints, and, in any event , includes a disclaimer clarifying that the Bar does not endorse any views expressed therein. That structure suffices under Keller

. 38

37 See, e.g. , Schneider , 917 F.2d at 626, 631 (endorsing “continuing legal education programs” as a permissible activity to fund with mandatory bar dues).

38 The plaintiffs also reference, in a single sentence, the Bar’s spending on adve r
tising. Beyond that, however, the y do not explain how it is unlawful , under Keller , to Case: 20-50448 Document: 00515926585 Page: 28 Date Filed: 07/06/2021No. 20

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29 * * * * * In sum, the Bar is engaged in non

- germane activities, so compelling the plaintiffs to join i t violates their F irst A mendment rights. There are multiple other constitutional options: T he B ar can cease engaging in non

germane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York ’s ; or Texas can adopt a hybrid system , like California ’s . But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.

IV

. Assuming, arguendo , that the plaintiffs can be required to join the Bar, compelling them to subsidize the Bar ’ s non
- germane activities violates their freedom of speech. 39 Given that the Bar is engaged in non

- germane activities

an d that its interests fail exacting scrutiny , 40 th at is a straightfor ward applica

tion of Keller . The Bar may “ constitutionally fund activities ger mane to [reg

u lat ing the legal profession or improving the quality of legal services] out of the mandator y dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity. ” Keller , 496 U.S. at 14. As explained above, parts of the legislative program and the support for AJC are n on
- germane, so com pelling plaintiffs to fund them violates their f reedom of s peech. They are entitled to summary

compel them to support those efforts. “It is not enough to merely mention or allude to a legal theory”: “[A] party must ‘press’ its claims,” which means, at a minim um, “clearly identifying a theory as a proposed basis for deciding the case.” United States v. Scroggins , 599 F.3d 433, 446

– 47 (5th Cir. 2010). Because the plaintiffs have not met that threshold, they have forfeited any contention related to the advertis ing expenditures.

39 “This alternative holding is not dicta. In this circuit, ‘alternative holdings are binding precedent and not obiter dicta .’” Ramos

- Portillo v. Barr , 919 F.3d 955, 962 n.5 (5th Cir. 2019) (quoting Whitaker v. Collier , 862 F.3d 490, 4 96 n.14 (5th Cir. 2017)).

40 See Part I II.C, supra

. Case: 20-50448 Document: 00515926585 Page: 29 Date Filed: 07/06/2021No. 20

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30 judgment on th eir second claim

.
V

. The plaintiffs maintain that the Bar ’ s procedures for separating charge able from non
- chargeable expenses is constitutionally inadequate. 41 They are, but not for the primary reason the plaintiffs offer. The plaintiffs contend the Bar ’ s procedures, outlined in Part I.C, supra , are constitutionally inadequate in light of recent preceden t requiring clear, free, and affirmative consent

— i.e. , an opt

- in system 42

— “ before an association can use an individual ’ s coerced fees or dues to support its political and ideological activities. ” The plaintiffs assert in the alternative that , even if the Bar may use an opt

- out refund procedure, its current procedures are still inadequate because the Bar (1) require s members to pay dues before seeking any refund, (2) does not provide adequate notice of its spending as required by Chi cago T ea ch e rs Union, Loc al No. 1, AFT, AFL

- CIO v. Hudson , 475 U.S. 292 (1986) , and (3) makes refund s available only at the Bar ’ s discretion

. The Bar counters that “ nothing in Keller mandates that integrated bars adopt the exact procedures Hudson outlined , ” let alone that mandatory bars use an opt

- in system. The Bar avers that its current procedures are con

stitutional under Keller because “ the Bar provides members with advance,

41 Even if the plaintiffs cannot be compelled to join the Bar because that violates their freedom of association, the adequacy of the Bar’s procedures is still relevant. As we clarif y today in No. 20

- 300 86, Boudreaux v. Louisiana State Bar Association , the inability to identify non

- germane expenses is itself a con stitutional injury, entitling the plaintiffs to relief. Moreover, because the plaintiffs can be compelled to join the Bar if it ceases its non

germane activities, per Lathrop , ensuring the Bar has adequate procedures to notify the plaintiffs, and others, that some activities might be non

- germane is important.

42 See Janus , 138 S. Ct. at 2486; Knox , 567 U.S. at 322. Case: 20-50448 Document: 00515926585 Page: 30 Date Filed: 07/06/2021No. 20

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31 detailed notice of its proposed expenditures, along with several opportunities to object to those expenditures before they occur. ” Speci fically, the Bar points to (1) the publication of its proposed budget, which it emizes expendi

tures for particular categories, in the Texas Bar Journal ; (2) opportunities to object at the budget hearing and the annual Bar Board meeting related to the budget; and (3) the protest procedure, which allows members to object to both propos ed and actual expenditures and obtain a refund.
Each side is half right

. The plaintiffs are correct that the Bar ’ s proce
dures are constitutionally wanting, but they are incorrect that, at least under current law, opt

- in procedures are required. Though J anus and Knox indi

cate that may be the case, Keller , despite “ its increasingly wobbly, moth

eaten foundations, ” 43 remains binding on this court. And Keller noted that

“ an integrated bar could certainly meet its Abood obligation by adopting the sort of procedures described in Hudson

. ” Keller , 496 U.S. at 17

. Hudson requires that a public organization collecting mandatory dues and engaging in non

- germane conduct have procedures that “ include an adequate explanation of the basis for the fee, a reasonably prompt oppor

tunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending. ” Hudson , 475 U.S. at 310. The explanation of the basis of the fee must include “ sufficient information to gauge the propriety of the union ’ s fee. ” Id. at 306. Hudson ’ s procedures contemplate an opt

- out rule. And Keller indicated that Hudson ’ s procedures are sufficient to satisfy a Bar ’ s obli

g ations. Therefore, assuming that plaintiffs can be compelled to join the Bar at all, the Bar may constitutionally use some sort of opt

- out procedure for giving pro

- rata refunds

.

43 State Oil , 522 U.S. at 2 0 (quotation marks omitted). Case: 20-50448 Document: 00515926585 Page: 31 Date Filed: 07/06/2021No. 20

- 50448

32 But , though the Bar may use opt

- out procedures, its current proce
dures are c onstitutionally in adequate. The Bar asserts that Keller did not hold that Hudson ’ s procedures are constitutionally necessary . That is correct as far as it goes: Keller left open whether “ one or more alternative procedures would likewise satisfy ” the Bar ’ s obligation. Keller , 496 U.S. at 17. But Janus and Knox have subsequently made clear that procedures even more protec

tive than those described in Hudson (i.e. , opt

- in procedures) are necessary in the closely related union context. 44 In the ab sence of Keller ’ s holding that Hudson ’ s procedures are sufficient, we would be bound to follow the Supreme Court ’ s directive in those cases and require opt

- in procedures. But of course, Keller ’ s indication that Hudson ’s procedures are sufficient remains b inding. Therefore, given that Keller indicated that Hudson ’s procedures are sufficient, and Janus held even more protective procedures are necessary, Hudson ’s procedures are both necessary and sufficient

. 45
The Bar ’ s procedures are inadequate under Hudson

. The Bar does not furnish Texas attorneys with meaningful notice regarding how their dues will be spent. Nor does it provide them with any breakdown of where their fees go. Instead, it places the onus on objecting attorneys to pa rse the Bar ’ s proposed budget

— which only details expenses at the line

- item level, often

44 “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay .” Janus , 138 S. Ct. at 2486 (emphasis added); see also Knox , 567 U.S. at 312

– 13 (explaining that the cases approving opt

- out procedures were more “historical accident” than “careful application of First Amendment princi

ples”); id. at 314 (“By authorizing a union to co llect fees from nonmembers and permitting the use of an opt

- out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.”).

45 In so ho lding, we part ways with the Ninth Circuit’s decision in Crowe , 989 F.3d at 727, and align ourselves instead with the dissent, see id. at 734 (Van Dyke, J., dissenting). Case: 20-50448 Document: 00515926585 Page: 32 Date Filed: 07/06/2021No. 20

- 50448

33 without significant explanation

— to determine which activities might be objectionable. That is a far cry from a Hudson notice, which estimates the breakdown between cha rgeable and non

- chargeable activities and explains how those amounts were determined. Se e Hudson , 475 U.S. at 307 & n.18

. The Bar then leaves the objecting attorney with precious few worth

while options to express his or her disapproval. Though attorneys may regis

ter their complaints with committees and sections or lodge an objection at the Bar ’ s annual hearing on its proposed budget, those processes give cold

com fort : Any objector ’ s opposition can be summarily overruled , leaving that lawyer on the hook to fund ideological activities that he or she does not sup

port. To obtain a refund, the Bar requires that attorneys object to a specific activity

. 46 Moreover, whether a refund is available is left to the sole discretion of the Bar ’ s Executive Director, and refunds are issued only “ for the conven i ence of the Bar. ” In the event a refund is denied, the objecting attorney is out of luck. Hudson requires more than that.

VI

. Having held that the plaintiffs are entitled to partial summary judg

ment, we turn to whether they warrant a preliminary injunction pending the remedies stage. They do.

“ We review a

. . . denial of a preliminary injunction for an abuse of discretion, ” Moore v. Brown , 868 F.3d 398, 402 (5th Cir. 2017), “ but we review a decision grounded in erroneous legal principles de novo , ” City of Dall

. v. Delta Air Lines, Inc. , 847 F.3d 279, 286 (5th Cir. 2017) (quotation marks omitted). As discussed at length , supra , the denial of the preliminary

46 See Schneider , 917 F.2d at 634

– 35 (holding that the system for processing objec

ti ons was constitutionally insufficient under Keller where, most relevantly, objecting attor

neys had to lodge objections to specific activities in order to receive a refund). Case: 20-50448 Document: 00515926585 Page: 33 Date Filed: 07/06/2021No. 20

- 50448

34 injunction was based on an er r oneous hold ing that the Bar was not engaged in any non

- germane activities, so our review is de novo

. To obtain a preliminary injunction, the plaintiffs must establish that (1) they are “ likely to succeed on the merits, ” (2) they are “ likely to suffer irreparable harm in the absence of preliminary relief, ” (3) “ the balance of equities tips in [their] favor, ” and (4) “ an injunction is in the public inter

est. ” Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008)

. The plaintiffs have plainly satisfied the first factor. They are not just likely to succeed on the merits; they have succeeded on the merits already. The remaining factors also support granting the preliminary injunction. First, “ [t]he los s of First Amendment freedoms, for even minimal periods of time unquestionably constitutes irreparable injury. ” Elrod v. Burns , 427 U.S. 347, 373 (1976) (plurality). Next, “ injunctions pro tecting First Amendment freedoms are always i n the public interest. ” Texans for Free Enter. v. Tex. Ethics Comm’n , 732 F.3d 535, 539 ( 5th Cir. 2013) (quotation marks omitted)

. Finally, the balance of equities weighs heavily i n plain tiffs ’ favor because the only harm to the Bar is the inability to extract manda tory dues from the plain

tiffs in violation of the First Amendment, which is really “ no harm at all. ” Christian Legal Soc’y v. Walker , 453 F.3d 853, 867 ( 7th Cir. 2006)

.

* * * The district court erred in its reading of Lathrop and Keller and in its application of Keller ’ s germaneness test to the Bar ’ s activities. We therefore **VACATE** the summary judgment , **RENDER** partial summary judgment in favor of the plaintiffs , and **REMAND** for the court to determine the full scope of relief to which pla intiffs are entitled

. We additionally **REVERSE** the denial of plaintiffs ’ motion for a preliminary injunction and **RENDER** a preliminary injunction preventing the Bar from requiring the plaintiffs to join or pay dues pending completion of the remedies phase. Case: 20-50448 Document: 00515926585 Page: 34 Date Filed: 07/06/2021