FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL Z. CROWE, 

Plaintiff-Appellant, 

OREGON CIVIL LIBERTIES 

ATTORNEYS, an Oregon nonprofit 

corporation, 

Plaintiff-Appellant, 

and 

LAWRENCE K. PETERSON I, 

Plaintiff, 

 v. 

OREGON STATE BAR, a Public 

Corporation; OREGON STATE BAR 

BOARD OF GOVERNORS; 

VANESSA A. NORDYKE, President 

of the Oregon State Bar Board of 

Governors; CHRISTINE 

CONSTANTINO, President-elect of 

the Oregon State Bar Board of 

Governors; HELEN MARIE 

No. 23-35193 

D.C. No. 3:18-cv02139-JR 

OPINION
2 CROWE V. OREGON STATE BAR

HIERSCHBIEL, Chief Executive 

Officer of the Oregon State Bar; 

KEITH PALEVSKY, Director of 

Finance and Operations of the Oregon 

State Bar; AMBER HOLLISTER, 

General Counsel for the Oregon State 

Bar, 

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted April 2, 2024

Portland, Oregon

Filed August 28, 2024

Before: John B. Owens and Michelle T. Friedland, Circuit 

Judges, and William Horsley Orrick,* District Judge.

Opinion by Judge Friedland

* The Honorable William Horsley Orrick, United States District Judge 

for the Northern District of California, sitting by designation.
CROWE V. OREGON STATE BAR 3 

SUMMARY**

First Amendment/Bar Dues

In an action brought by attorney Daniel Crowe alleging 

that the requirement that he join the Oregon State Bar 

(“OSB”) infringes his First Amendment right to freedom of 

association, the panel dismissed his claims against OSB and 

his claims against OSB officers for retrospective relief, 

reversed the district court’s summary judgment for OSB 

officers on his claims for prospective equitable relief, and 

remanded. 

Applying Kohn v. State Bar of California, 87 F.4th 1021 

(9th Cir. 2023) (en banc), the panel held that OSB is an arm 

of the state entitled to sovereign immunity, and therefore 

dismissed Crowe’s claims against OSB. Sovereign 

immunity also precludes Crowe’s claims for retrospective 

relief against individual OSB officers sued in their official 

capacities. However, sovereign immunity does not bar 

Crowe’s claims for prospective declaratory and injunctive 

relief against individual OSB officers. 

The panel held that Crowe demonstrated an infringement 

on his freedom of association because he objected to certain 

statements by OSB in its magazine that would reasonably 

have been imputed to OSB’s members. Considering the 

totality of the circumstances, OSB traded on its supposedly 

unified membership to bolster its own expression, fostering 

a misperception about the unanimity of its members’ views. 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
4 CROWE V. OREGON STATE BAR

Crowe established that OSB impaired his own expression 

because he objected to the message sent by his membership. 

The panel held that the infringement on Crowe’s 

freedom of association did not survive exacting scrutiny 

because OSB’s communications were not related to the 

Bar’s regulatory purpose. Accordingly, the panel reversed 

the district court’s judgment as to Crowe’s freedom of 

association claim for prospective equitable relief against 

individual OSB officers and remanded for further 

proceedings. 

COUNSEL

Scott D. Freeman (argued) and Adam C. Shelton, ScharfNorton Center for Constitutional Litigation at the Goldwater 

Institute, Phoenix, Arizona; Luke D. Miller, Military 

Disability Lawyer LLC, Salem, Oregon; for PlaintiffsAppellants. 

Kristin M. Asai (argued), Paul Matthias-Bennetch, and 

Abigail Gore, Holland & Knight LLP, Portland, Oregon, for 

Defendants-Appellees.

OPINION

FRIEDLAND, Circuit Judge: 

Attorney Daniel Crowe sued the Oregon State Bar and 

its officers, arguing that the requirement that he join the Bar 

infringes his First Amendment right to freedom of 

association. We hold that the Oregon State Bar is an arm of 
CROWE V. OREGON STATE BAR 5

the state entitled to sovereign immunity, so the Bar itself 

must be dismissed as a defendant. But we hold, as to the 

officer defendants, that Crowe has demonstrated an 

infringement on his freedom of association because he 

objects to certain communications by the Bar that would 

reasonably have been imputed to the Bar’s members. We 

also hold that the infringement was not justified because the

communications in question were not related to the Bar’s 

regulatory purpose. We therefore reverse the district court’s 

judgment for the officer defendants on Crowe’s freedom of 

association claim and remand for further proceedings.

I.

A.

To practice law in Oregon, an attorney must be a member 

of the Oregon State Bar (“OSB”). Or. Rev. Stat. § 9.160(1). 

An attorney must also pay annual membership dues, which 

are used to fund OSB’s activities. Id. §§ 9.191, 9.200. 

Those activities include administering bar exams, 

formulating and enforcing rules of professional conduct, and 

establishing minimum continuing legal education 

requirements for Oregon attorneys. Id. §§ 9.210, 9.490, 

9.112. OSB also lobbies the state legislature and publishes 

a magazine called the Bulletin. See OSB Bylaws art. 10 

(bylaws for OSB communications), 11 (bylaws for 

legislation and public policy activities). 

In the April 2018 issue of the Bulletin, OSB published 

two statements on “White Nationalism and [the]

Normalization of Violence.” The two statements were

published on facing pages, surrounded by a single dark green 

border that was not present on the other pages of the 

magazine. The first statement had OSB’s dark green logo 

on the top of the page, and it was signed by six OSB officers,
6 CROWE V. OREGON STATE BAR

including the President and the Chief Executive Officer. 

That statement said: 

Statement on White Nationalism and 

Normalization of Violence

As the United States continues to grapple 

with a resurgence of white nationalism and 

the normalization of violence and racism, the 

Oregon State Bar remains steadfastly 

committed to the vision of a justice system 

that operates without discrimination and is 

fully accessible to all Oregonians. As we 

pursue that vision during times of upheaval, 

it is particularly important to understand 

current events through the lens of our 

complex and often troubled history. The 

legacy of that history was seen last year in the 

streets of Charlottesville, and in the attacks 

on Portland’s MAX train. We unequivocally 

condemn these acts of violence.

We equally condemn the proliferation of 

speech that incites such violence. Even as we 

celebrate the great beneficial power of our 

First Amendment, as lawyers we also know it 

is not limitless. A systemic failure to address 

speech that incites violence emboldens those 

who seek to do harm, and continues to hold 

historically oppressed communities in fear 

and marginalization.

As a unified bar, we are mindful of the 

breadth of perspectives encompassed in our 

membership. As such, our work will 

continue to focus specifically on those issues 
CROWE V. OREGON STATE BAR 7

that are directly within our mission, including 

the promotion of access to justice, the rule of 

law, and a healthy and functional judicial 

system that equitably serves everyone. The 

current climate of violence, extremism and 

exclusion gravely threatens all of the above. 

As lawyers, we administer the keys to the 

courtroom, and assist our clients in opening 

doors to justice. As stewards of the justice 

system, it is up to us to safeguard the rule of 

law and to ensure its fair and equitable 

administration. We simply cannot lay claim 

to a healthy justice system if whole segments 

of our society are fearful of the very laws and 

institutions that exist to protect them.

In today’s troubling climate, the Oregon 

State Bar remains committed to equity and 

justice for all, and to vigorously promoting 

the law as the foundation of a just democracy. 

The courageous work done by specialty bars 

throughout the state is vital to our efforts and 

we continue to be both inspired and 

strengthened by those partnerships. We not 

only refuse to become accustomed to this 

climate, we are intent on standing in support 

and solidarity with those historically 

marginalized, underrepresented and 

vulnerable communities who feel voiceless 

within the Oregon legal system.
8 CROWE V. OREGON STATE BAR

The second statement was signed by the Presidents of 

seven Oregon Specialty Bar Associations, which are 

voluntary organizations separate from OSB. It said: 

Joint Statement of the Oregon Specialty 

Bar Associations Supporting the Oregon 

State Bar’s Statement on White 

Nationalism and Normalization of 

Violence

The Oregon Asian Pacific American Bar 

Association, the Oregon Women Lawyers, 

the Oregon Filipino American Lawyers 

Association, OGALLA-The LGBT Bar 

Association of Oregon, the Oregon Chapter 

of the National Bar Association, the Oregon 

Minority Lawyers Association, and the 

Oregon Hispanic Bar Association support the 

Oregon State Bar’s Statement on White 

Nationalism and Normalization of Violence 

and its commitment to the vision of a justice 

system that operates without discrimination 

and is fully accessible to all Oregonians.

Through the recent events from the 

Portland MAX train attacks to 

Charlottesville, we have seen an emboldened 

white nationalist movement gain momentum 

in the United States and violence based on 

racism has become normalized. President 

Donald Trump, as the leader of our nation, 

has himself catered to this white nationalist 

movement, allowing it to make up the base of 

his support and providing it a false sense of 

legitimacy. He has allowed this dangerous 
CROWE V. OREGON STATE BAR 9

movement of racism to gain momentum, and 

we believe this is allowing these extremist 

ideas to be held up as part of the mainstream, 

when they are not. For example, President 

Trump has espoused racist comments, 

referring to Haiti and African countries as 

“shithole countries” and claiming that the 

United States should have more immigrants 

from countries like Norway. He signed an 

executive order that halted all refugee 

admissions and barred people from seven 

Muslim-majority countries, called Puerto 

Ricans who criticized his administration’s 

response to Hurricane Maria “politically 

motivated ingrates,” said that the white 

supremacists marching in Charlottesville, 

[Virginia] in August of 2017 were “very fine 

people,” and called into question a federal 

judge, referring to the Indiana-born judge as 

“Mexican,” when the race of his parents had 

nothing to do with the judge’s decision. We 

are now seeing the white nationalist 

movement grow in our state and our country 

under this form of leadership.

As attorneys who lead diverse bar 

associations throughout Oregon, we 

condemn the violence that has occurred as a 

result of white nationalism and white 

supremacy. Although we recognize the 

importance of the First Amendment of the 

United States Constitution and the 

protections it provides, we condemn speech 

that incites violence, such as the violence that 
10 CROWE V. OREGON STATE BAR

occurred in Charlottesville. President Trump 

needs to unequivocally condemn racist and 

white nationalist groups. With his continued 

failure to do so, we must step in and speak up.

As attorneys licensed to practice law in 

Oregon, we took an oath to “support the 

Constitution and the laws of the United States 

and of the State of Oregon.” To that end, we 

have a duty as attorneys to speak up against 

injustice, violence, and when state and 

federal laws are violated in the name of white 

supremacy or white nationalism. We must 

use all our resources, including legal 

resources, to protect the rights and safety of 

everyone. We applaud the Oregon State 

Bar’s commitment to equity and justice by 

taking a strong stand against white 

nationalism. Our bar associations pledge to 

work with the Oregon State Bar and to speak 

out against white nationalism and the 

normalization of racism and violence.

Daniel Crowe, an attorney and member of OSB, objected 

to the statements. OSB’s bylaws provide a dispute 

resolution procedure by which a member of the Bar can 

request a refund for “any portion of the member’s bar dues 

[used] for activities he or she considers promotes or opposes 

political or ideological causes.” OSB Bylaws § 11.3. 

Invoking that policy, Crowe demanded a refund of his dues. 

OSB gave Crowe and other objecting members refunds for

their shares of the cost of publishing the April 2018 issue of 

the Bulletin, plus interest.
CROWE V. OREGON STATE BAR 11

B.

1.

Still unsatisfied, Crowe filed a lawsuit against OSB and 

some of its officers (collectively, “Defendants”) alleging 

violations of his First Amendment rights.1 

The Complaint alleged, among other things, that OSB 

used its compulsory dues for activities that were not 

“germane” to OSB’s purpose and that doing so violated 

Crowe’s right to freedom of speech; that OSB’s refund 

process for objecting members was insufficient; and that 

compulsory membership in OSB violated his right to 

freedom of association. Crowe sought declaratory and 

injunctive relief, as well as damages in the amount of all the 

dues he previously paid to OSB.

Defendants moved to dismiss, and the district court 

granted the motion. Crowe appealed. 

On appeal, our court affirmed in part and reversed in 

part. Crowe v. Or. State Bar, 989 F.3d 714, 720 (9th Cir. 

2021) (“Crowe I”). Applying the then-controlling test, we 

held that OSB was not an arm of the state entitled to 

sovereign immunity. Id. at 730-33 (applying test from

1 Crowe also formed the Oregon Civil Liberties Attorneys (“ORCLA”), 

and ORCLA joined him as a co-plaintiff in this suit. ORCLA has 

asserted that it has organizational standing under Hunt v. Washington 

State Apple Advertising Commission, 432 U.S. 333, 343 (1977), based 

on Crowe’s injuries and Crowe’s membership in ORCLA. We remand 

to the district court to consider in the first instance whether ORCLA has 

standing to pursue a freedom of association claim. See id. (explaining 

that, for an organization to have standing, “the claim asserted . . . [must 

not] require[] the participation of individual members in the lawsuit”). 

Because we focus in this opinion only on Crowe, we refer to him as the 

only relevant plaintiff.
12 CROWE V. OREGON STATE BAR

Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th 

Cir. 1988)). 

We also held that Crowe had not stated a freedom of

speech claim. Id. at 727. We explained that in Keller v. State 

Bar of California, 496 U.S. 1 (1990), the Supreme Court 

held that “a state bar may use mandatory dues to subsidize 

activities ‘germane to th[e] goals’ of ‘regulating the legal 

profession and improving the quality of legal services’ 

without running afoul of its members’ First Amendment 

rights of free speech.” Crowe I, 989 F.3d. at 724 (quoting 

Keller, 496 U.S. at 13-14). If a state bar engages in 

nongermane activities, that does not violate the members’

freedom of speech so long as the bar has adequate safeguards 

to protect the rights of any objecting member, including a 

process for refunding the portion of the member’s dues used 

for any nongermane activities. See id. at 725-26. Applying 

Keller, we held that OSB’s refund process was adequate and 

that Crowe’s freedom of speech claim failed because any 

injury had been remedied by the refund he had received. Id. 

at 726-27. For purposes of the freedom of speech claim, we 

did not decide whether the two Bulletin statements were 

germane under Keller or whether the Specialty Bars’ 

statement was attributable to OSB.

2 Id. at 724. 

In contrast to the freedom of speech claim, we held that 

Crowe’s freedom of association claim could be “viable”

because it was not foreclosed by prior precedent. Id. at 729. 

We explained that Keller did not foreclose Crowe’s claim 

2 We also rejected Crowe’s argument that, because of intervening 

changes in the Supreme Court’s precedent on mandatory union dues, 

Keller was no longer good law. Crowe I, 989 F.3d. at 724-25. We 

explained that the Supreme Court has not expressly overruled Keller, so, 

as a lower court, we are still bound by it. Id. at 725. 
CROWE V. OREGON STATE BAR 13

because Keller evaluated only a freedom of speech claim and 

“expressly declined to address” the plaintiffs’ freedom of 

association claim. Id. at 727. 

We then addressed Lathrop v. Donohue, 367 U.S. 820 

(1961), another Supreme Court case addressing mandatory 

state bar associations. In Lathrop, an attorney had argued 

that the requirement that he join a state bar infringed his right 

to freedom of association in part because the bar engaged in 

legislative activities like lobbying. 367 U.S. at 822. 

Although no opinion was joined by a majority, seven 

Justices ruled against the attorney. See id. at 848 (plurality 

opinion). A plurality of the Supreme Court explained:

[I]n order to further the State’s legitimate 

interests in raising the quality of professional 

services, [the State] may constitutionally 

require that the costs of improving the 

profession . . . 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. 

Id. at 843. 

We held that Lathrop did not preclude Crowe’s freedom 

of association claim for two reasons. First, “Lathrop’s ‘free 

association’ decision was limited to ‘compelled financial 

support of group activities’”; it did not address “‘involuntary 

membership in any other aspect.’” Crowe I, 989 F.3d. at 727 

(emphasis omitted) (quoting Lathrop, 367 U.S. at 828). 

Second, although the attorney in Lathrop complained that 

the bar was engaging in legislative activities, “the Lathrop

plurality presumed, on the bare record before it, that all the 
14 CROWE V. OREGON STATE BAR

bar’s activities, including lobbying, related to ‘the regulatory 

program’ of ‘improving the profession.’” Id. at 727-28 

(quoting Lathrop, 367 U.S. at 843). Thus, “[a]t 

bottom, Lathrop merely permitted states to compel 

practicing lawyers to pay toward the costs of regulating their 

profession,” whereas Crowe took issue with more than just 

the payment of dues, and he asserted that OSB engaged in 

nongermane activities. Id. at 728.

We also held that there was no controlling Ninth Circuit 

authority and that it was therefore an open question “whether 

the First Amendment tolerates mandatory membership 

itself—independent of compelled financial support—in [a

state bar] that engages in nongermane political activities.” 

Id. at 729. We remanded to the district court to determine

the proper test for analyzing such a freedom of association 

claim and to apply it. Id.

2.

On remand, the parties conducted discovery and then

filed cross-motions for summary judgment. Crowe argued 

that OSB’s nongermane conduct included both the 2018 

Bulletin statements and some of OSB’s lobbying in front of 

the state legislature that had pushed for changes to the state’s 

substantive laws.

The district court held that compelled state bar 

membership did not violate the freedom of association so 

long as the bar engaged in predominantly germane activities. 

It further held that all of the challenged lobbying and OSB’s 

own statement in the Bulletin were germane and that, even if 

the Specialty Bars’ statement was not germane, it would not 

establish a violation given OSB’s predominantly germane 

activities. The court accordingly denied Crowe’s motion for 
CROWE V. OREGON STATE BAR 15

summary judgment and granted summary judgment in favor 

of Defendants. Crowe timely appealed.

3.

After this appeal was filed, we held in Kohn v. State Bar 

of California, 87 F.4th 1021 (9th Cir. 2023) (en banc), that 

our prior test for determining whether an entity is an arm of 

the state for purposes of sovereign immunity was no longer 

consistent with Supreme Court authority, and we adopted a 

new test. Id. at 1027-1030. The parties in this case then

submitted supplemental briefing on whether OSB is entitled 

to sovereign immunity under Kohn.

II.

“We review de novo the district court’s decision on cross 

motions for summary judgment. We consider, viewing the 

evidence in the light most favorable to the nonmoving party, 

whether there are genuine issues of material fact and whether 

the district court correctly applied the relevant substantive 

law.” Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir. 

2007) (citation omitted).

III.

We turn first to the question whether OSB is entitled to 

immunity from suit under the Eleventh Amendment. The 

Eleventh Amendment provides: “The Judicial power of the 

United States shall not be construed to extend to any suit in 

law or equity, commenced or prosecuted against one of the 

United States by Citizens of another State, or by Citizens or 

Subjects of any Foreign State.”3 U.S. Const. amend. XI. 

3 “Longstanding Supreme Court precedent has interpreted this 

Amendment to immunize states from suit in federal court by citizens and 

noncitizens alike.” Kohn, 87 F.4th at 1025. 
16 CROWE V. OREGON STATE BAR

“The Eleventh Amendment largely shields States from suit 

in federal court without their consent, leaving parties with 

claims against a State to present them, if the State permits, 

in the State’s own tribunals.” Hess v. Port Auth. TransHudson Corp., 513 U.S. 30, 39 (1994). “This immunity 

extends not just to suits in which the state itself is a named 

party but also to those against an ‘arm of the [s]tate.’” Kohn, 

87 F.4th at 1026 (alteration in original) (quoting Mt. Healthy 

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 

(1977)). 

In Kohn, we adopted a new, three-factor test for 

determining whether an entity is an arm of the state. Id. at 

1030. The test looks to “(1) the [s]tate’s intent as to the 

status of the entity, including the functions performed by the 

entity; (2) the [s]tate’s control over the entity; and (3) the 

entity’s overall effects on the state treasury.” Id. (alterations 

in original) (quoting P.R. Ports Auth. v. Fed. Mar. Comm’n, 

531 F.3d 868, 873 (D.C. Cir. 2008) (“PRPA”)). Under the

test, “an entity either is or is not an arm of the [s]tate: The 

status of an entity does not change from one case to the next 

based on the nature of the suit, the [s]tate’s financial 

responsibility in one case as compared to another, or other 

variable factors.” Id. at 1031 (alterations in original) 

(quoting PRPA, 531 F.3d at 873).

Applying that test in Kohn, we held that the California 

State Bar is an arm of the state. Id. at 1037. We noted that 

we were in “good company” because “all the other federal 

circuits to have considered the question [in recent decades] 

have agreed: State bars are arms of the state and enjoy 

sovereign immunity under the Eleventh Amendment.” Id. 

We then identified Crowe I’s holding that OSB was not an 

arm of the state as the one exception to that otherwise solid 

consensus. Id. We explained that “[a]ny future case brought 
CROWE V. OREGON STATE BAR 17

against the Oregon State Bar [would] need to be analyzed 

under the new test.” Id. We conduct that analysis now. 

A.

1.

The first factor of the Kohn test assesses the “[s]tate’s

intent as to the status of the entity.” 87 F.4th at 1030 

(alteration in original) (quoting PRPA, 531 F.3d at 873). 

This factor turns on “[1] whether state law expressly 

characterizes the entity as a governmental instrumentality 

rather than as a local governmental or non-governmental 

entity; [2] whether the entity performs state governmental 

functions; [3] whether the entity is treated as a governmental 

instrumentality for purposes of other state law; and [4] state 

representations about the entity’s status.” Id. Oregon’s 

intent here supports concluding that OSB is an arm of the 

state.

First, Oregon state law characterizes OSB as a state 

governmental instrumentality, not a local or nongovernmental entity. By statute, OSB is “an instrumentality 

of the Judicial Department of the government of the State of 

Oregon.” Or. Rev. Stat. § 9.010(2). Oregon state courts

have also characterized OSB as an instrumentality of the 

state operating on behalf of the judicial department. See 

State ex rel. Frohnmayer v. Or. State Bar, 767 P.2d 893, 895

(Or. 1989). In Kohn, we held that the California Supreme 

Court’s similar descriptions of the California State Bar “as 

its ‘administrative arm’ for attorney discipline and 

admission purposes cut[] decisively in favor of” immunity. 

87 F.4th at 1032 (citations omitted).

Second, OSB “performs functions typically performed 

by state governments.” Id. at 1033 (quoting PRPA, 531 F.3d 
18 CROWE V. OREGON STATE BAR

at 875). In Kohn, we held that the California State Bar did 

so because the licensing, regulation, and discipline of 

lawyers are state functions. Id. at 1033-34. OSB performs 

those same functions. Or. Rev. Stat. §§ 9.080(1)(a)

(providing that OSB’s Board of Governors is tasked with 

“[r]egulating the legal profession”), 9.112 (providing that 

the Board of Governors may set requirements for continuing 

legal education, subject to approval by the Oregon Supreme 

Court), 9.210(1) (providing that the Board of Bar Examiners 

shall “carry out the admissions functions of the Oregon State 

Bar”), 9.490(1) (providing that the Board of Governors 

“shall formulate rules of professional conduct for attorneys,”

subject to approval by the Oregon Supreme Court). 

Third, OSB “is treated as a governmental instrumentality 

for purposes of other state law.” Kohn, 87 F.4th at 1030. In 

Kohn, we relied on the fact that the California State Bar is 

“subject to California public-records and open-meeting 

laws” and that its “property is tax-exempt.” Id. at 1034. 

OSB is similarly subject to other state laws that apply to 

public entities, including the Oregon Tort Claims Act, the 

Oregon Public Records Law, and the Oregon Public 

Meetings Law. Or. Rev. Stat. § 9.010(3) (providing that “the 

[B]ar is subject to [certain] statutes applicable to public 

bodies” and listing those statutes).

Fourth, Oregon asserted in an amicus brief in this case

that OSB is an arm of the state. See Kohn, 87 F.4th at 1030

(explaining that a court should consider “state 

representations about the entity’s status” under this factor). 

Such a representation weighs in favor of sovereign 

immunity. See PRPA, 531 F.3d at 876 (relying on a similar

amicus brief in analyzing this factor). 
CROWE V. OREGON STATE BAR 19

In sum, all four considerations demonstrate that Oregon

intended OSB to be an arm of the state. 

2.

The second Kohn factor assesses the state’s control over 

the entity. 87 F.4th at 1030. This factor “depends on how 

members of the governing body of the entity are appointed 

and removed, as well as whether the state can ‘directly 

supervise and control [the entity’s] ongoing operations.’” Id. 

(alteration in original) (quoting PRPA, 531 F.3d at 877). 

Although Oregon has somewhat less control over OSB than 

California did over the California State Bar in Kohn, this 

factor still weighs in favor of concluding that OSB is an arm 

of the state.

In Kohn, we relied on the fact that the state government 

had “the power to appoint the [California] State Bar’s 

governing structure”—the Board of Trustees and the 

Committee of Bar Examiners. Id. at 1035. Here, the Oregon 

Supreme Court appoints one of OSB’s equivalent bodies but 

not the other. As in Kohn, the state supreme court appoints 

the officers who oversee attorney admissions (OSB’s Board 

of Bar Examiners). Or. Rev. Stat. § 9.210(1). But unlike in 

Kohn, the state has no role in appointing members of the 

Bar’s board (OSB’s Board of Governors), most of whom are 

elected by OSB’s members. Or. Rev. Stat. §§ 9.080, 

9.025(1)(a). The state also has no role in the removal of 

members of the Board of Governors. See Or. Rev. Stat. 

§ 9.050; OSB Bylaws § 2.9.

Still, we must consider whether Oregon exercises other 

forms of control over OSB. Here, as in Kohn, the Bar is 

controlled by the state supreme court, and that control 

weighs in favor of concluding that the Bar is an arm of the 

state. 
20 CROWE V. OREGON STATE BAR

In Kohn, we observed that the California State Bar’s 

admission rules, admission decisions, and disciplinary 

decisions were subject to the California Supreme Court’s 

review. Kohn, 87 F.4th at 1035. We described that oversight 

as an exercise of “significant control over the State Bar’s 

functioning.” Id. Similarly, the Oregon Supreme Court 

“makes final decisions on admitting attorneys, disciplining 

attorneys, and adopting rules of professional conduct.” 

Crowe I, 989 F.3d at 732; see also Or. Rev. Stat. 

§§ 9.490(1), 9.527, 9.529, 9.536, 9.542. 

Oregon also exercises some control over OSB’s budget. 

OSB submits an annual budget for its admissions, discipline,

and continuing legal education programs to the Oregon 

Supreme Court for review and approval. OSB Bylaws 

§ 2.1(d). And the Oregon Supreme Court approves the fees 

that OSB sets for admission. Id. § 22.5. 

On balance, the extent of Oregon’s control over OSB 

weighsin favor of concluding that OSB is an arm of the state. 

3.

The final Kohn factor looks to the entity’s “financial 

relationship” with the state and the entity’s “overall effects” 

on the state’s treasury. 87 F.4th at 1036. “In analyzing this 

third factor . . . the relevant issue is a [s]tate’s overall 

responsibility for funding the entity or paying the entity’s 

debts or judgments.” Id. (alterations in original) (quoting 

PRPA, 531 F.3d at 878). 

In Kohn, we said that this factor was a “closer call” than 

the other two. Id. at 1037. We recognized that the California 

State Bar is “responsible for its own debts and liabilities, so 

California would not be liable for a judgment against the 

State Bar.” Id. at 1036. But we acknowledged the California
CROWE V. OREGON STATE BAR 21

State Bar’s argument that “if the State Bar were unable to 

satisfy a money judgment against it,” California would likely 

step in to ensure that the Bar could continue to perform its 

“‘vital governmental function.’” Id. at 1036-37 (quoting 

Alaska Cargo Transp., Inc. v. Alaska R.R. Corp., 5 F.3d 378, 

381 (9th Cir. 1993)). We did not fully resolve the extent to 

which the California State Bar affects or could affect the 

California treasury, explaining that this factor was not 

dispositive because “the intent and control factors strongly 

favor[ed]” concluding that the California State Bar was an 

arm of the state. Id. at 1037. 

Here, OSB is also responsible for its own debts and 

liabilities, so Oregon would not be liable for a judgment 

against OSB. Or. Rev. Stat. § 9.010(6). But, as in Kohn, if 

the Bar were to become insolvent, the state would likely step 

in with financial support so that the Bar could continue to 

perform its critical state functions. Given that the intent and 

control factors strongly weigh in favor of concluding that 

OSB is an arm of the state, we need not fully resolve the third 

factor. See Kohn, 87 F.4th at 1037. 

Having evaluated the three Kohn factors, we hold that 

OSB is an arm of the state. The claims against OSB must 

therefore be dismissed on sovereign immunity grounds. See 

id. at 1025-26.

B.

OSB’s immunity does not end this case. Sovereign

immunity shields the state (and arms of the state) from suit. 

Kohn, 87 F.4th at 1025-26. But “[u]nder Ex Parte Young

and its progeny, a suit seeking prospective equitable relief 

against a state official [sued in her official capacity] who has 

engaged in a continuing violation of federal law is not 

deemed to be a suit against the [s]tate for purposes of state 
22 CROWE V. OREGON STATE BAR

sovereign immunity.” In re Ellett, 254 F.3d 1135, 1138 (9th 

Cir. 2001) (citing Ex Parte Young, 209 U.S. 123, 159-60

(1908)). Here, in addition to suing OSB, Crowe has sued 

OSB’s officers in their official capacities seeking 

prospective declaratory and injunctive relief for violating his 

freedom of association right. Sovereign immunity does not 

prevent that part of his case from proceeding.

4

IV.

We now turn to the merits of Crowe’s freedom of 

association claim. The First Amendment provides: 

“Congress shall make no law respecting an establishment of 

religion, or prohibiting the free exercise thereof; or abridging 

the freedom of speech, or of the press; or the right of the 

people peaceably to assemble, and to petition the 

Government for a redress of grievances.”5 U.S. Const. 

amend. I. The Supreme Court has held that the First 

Amendment implicitly recognizes “a right to associate for 

the purpose of engaging in those activities” that it explicitly 

protects. Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). 

The freedom of association “plainly presupposes a freedom 

not to associate.” Id. at 623. But the freedom of association 

(including the freedom not to associate) does not protect all 

“associations.” Because the freedom of association is a 

corollary to other First Amendment rights, it only protects 

4 Crowe also seeks to recover the dues he paid to OSB, but sovereign 

immunity precludes claims for retrospective relief against officer 

defendants sued in their official capacities. Koala v. Khosla, 931 F.3d 

887, 894-95 (9th Cir. 2019). We therefore dismiss those claims.

5 The Fourteenth Amendment incorporates the First Amendment against 

the states. Am. Beverage Ass’n v. City & County of San Francisco, 916 

F.3d 749, 755 n.1 (9th Cir. 2019) (en banc).
CROWE V. OREGON STATE BAR 23

“associations to the extent that they are expressive.” IDK, 

Inc. v. Clark County, 836 F.2d 1185, 1194 (9th Cir. 1988). 

When a mandatory association infringes freedom of 

association, that infringement is permissible if it “serve[s] a 

‘compelling state interes[t] . . . that cannot be achieved 

through means significantly less restrictive of associational 

freedoms.” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 

U.S. 298, 310 (2012) (second and third alterations in 

original) (quoting Jaycees, 468 U.S. at 623). We have 

referred to that test as “exacting scrutiny.” Mentele v. Inslee, 

916 F.3d 783, 790 & n.3 (9th Cir. 2019). 

In analyzing Crowe’s freedom of association claim, we

accordingly must ask whether the challenged governmental 

conduct infringes the right to freedom of association at all, 

and if it does, whether that infringement can survive 

exacting scrutiny. 

A.

When a plaintiff challenges a requirement that he join an 

organization, the plaintiff can establish an infringement on 

his freedom of association by showing that his membership 

in the organization impairs his own expression. The plaintiff 

can make that showing if a reasonable observer would 

attribute some meaning to his membership—because, for 

instance, a reasonable observer would assume that the 

plaintiff agrees with the organization’s articulated 

positions—and he objects to that meaning. We first explain 

how that test flows from existing freedom of association 

caselaw. We then explain why Crowe has satisfied that test.

1.

Not all interactions with other people that “might be 

described as ‘associational’ in common parlance . . . involve 
24 CROWE V. OREGON STATE BAR

the sort of expressive association that the First Amendment 

has been held to protect.” City of Dallas v. Stanglin, 490 

U.S. 19, 24 (1989). For example, in IDK, Inc. v. Clark

County, 836 F.2d 1185 (9th Cir. 1988), we held that the 

relationships between escort services and their clients were

not protected by the freedom of association because the 

relationships were part of a “primarily commercial 

enterprise[]” and expression was not a “significant or 

necessary component of their activities.” Id. at 1195. 

In the same vein, the “freedom not to associate”—which 

Crowe invokes here—is not implicated every time a person 

would prefer to avoid some interaction. For instance, in 

Rumsfeld v. Forum for Academic and Institutional Rights, 

Inc., 547 U.S. 47 (2006), law schools challenged a 

requirement that, to receive federal funding, they allow 

military recruiters onto their campuses and assist those 

recruiters as they would any others. Id. at 52-53. The law 

schools argued, among other things, that the requirement 

infringed their freedom of association because the law 

schools objected to the military’s “Don’t Ask, Don’t Tell” 

policy. Id. Although the law schools argued that requiring 

them to interact with military recruiters “impair[ed] their 

own expression,” the Court held that a plaintiff could not

establish an infringement on the freedom of association 

“‘simply by asserting’ that mere association ‘would impair 

its message.’” Id. at 69 (quoting Boy Scouts of Am. v. Dale, 

530 U.S. 640, 653 (2000)). The Supreme Court

acknowledged that the law schools were required to 

“‘associate’ with military recruiters in the sense that they 

interact[ed] with them.” Id. But the Court held that the 

requirement did not infringe the schools’ freedom of 

association because the recruiters had only a passing 

presence on campus and because students and faculty were 
CROWE V. OREGON STATE BAR 25

“free to associate to voice their disapproval of the military’s 

message”—in other words, the schools were not required to 

accept the recruiters into the campus community in any 

meaningful sense. Id. at 69-70. 

Taken together, those cases establish that a plaintiff 

cannot demonstrate that his freedom of association is 

infringed merely by pointing to the fact that he is required to 

interact with an organization in some sense. Instead, he must 

show that the required association impairs his expression. 

Other cases make clear that a plaintiff can make that showing 

if a reasonable observer would impute some meaning to 

membership in the organization and the plaintiff objects to 

that meaning.

6

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), 

the Supreme Court held that a state antidiscrimination law

that required the Boy Scouts to admit a gay scoutmaster

violated the Boy Scouts’ freedom of association. Id. at 644. 

The Court explained that “[t]he forced inclusion of an 

unwanted person in a group infringes the group’s freedom of 

expressive association if the presence of that person affects 

in a significant way the group’s ability to advocate public or 

private viewpoints.” Id. at 648. Under that test, the Court 

held that the antidiscrimination requirement at issue 

burdened the Boy Scouts’ expression because the Boy

Scouts objected to same-sex relationships, and the 

scoutmaster was a “gay rights activist,” so his membership

would “force the organization to send a message, both to the 

youth members and the world, that the Boy Scouts accepts 

homosexual conduct as a legitimate form of behavior.” Id. 

6 We do not foreclose the possibility that a plaintiff could establish that 

a membership requirement burdens his expression in some other way; 

we conclude only that this is one way to establish an infringement. 
26 CROWE V. OREGON STATE BAR

at 650, 653. Significantly, the Court thought that the 

scoutmaster’s membership would send that message even 

though the Boy Scouts could presumably have made clear

that it was not voluntarily choosing to admit the gay 

scoutmaster. The Court then held that this burden on the Boy 

Scouts’ associational rights was not justified by the state’s 

interests. Id. at 656-59. Although in Dale an organization 

challenged a law requiring it to admit a member, it follows 

from Dale’s reasoning that when an individual challenges a 

law that requires him to become a member, he can show that 

the requirement infringes his freedom of association if the 

membership “send[s] a message” to a reasonable observer

about his own views and he objects to that message. Id. at 

653.

By contrast, in Roberts v. United States Jaycees, 468 

U.S. 609 (1984), the Supreme Court rejected the Jaycees 

organization’s argument that an antidiscrimination law that 

required it to admit women as full voting members violated 

its freedom of association. Id. at 612. The Court “decline[d] 

to indulge in the sexual stereotyping that underlie[d] [the 

Jaycees’] contention that, by allowing women to vote, 

application of the [antidiscrimination law would] change the 

content or impact of the organization’s speech.” Id. at 628. 

Moreover, the Jaycees already invited women to participate 

in the group as nonvoting members, so “any claim that 

admission of women as full voting members [would] impair 

a symbolic message conveyed by the very fact that women 

[were] not permitted to vote [was] attenuated at best.” Id. at 

627. Thus, the requirement did not impose “any serious 

burdens on the male members’ freedom of expressive 

association.” Id. at 626. In other words, because neither the 

Jaycees’ actual speech nor any symbolic message sent by its 

membership choices would be meaningfully changed by 
CROWE V. OREGON STATE BAR 27

complying with the antidiscrimination law, the Court 

concluded that the Jaycees’ freedom of association claim 

failed. As relevant here, Jaycees further supports that an 

individual person can challenge a requirement that he 

become a member by showing that a reasonable observer

would impute to him a message to which he objects.7

2.

We now turn to the application of that test to claims of 

compelled membership and then to Crowe’s claim 

specifically.

8 

Whether a reasonable observer will attribute any 

meaning to “membership” alone depends on the nature of a

group. Obviously, membership in a political party sends an 

expressive message. Even if a person takes no other action 

to support a political party, a reasonable observer

understands that membership in the political party, standing 

alone, says something about the person’s views. Cf. Elrod v. 

Burns, 427 U.S. 347, 355-56 (1976) (plurality opinion)

(holding that a requirement that public employees join the 

Democratic Party infringed their freedom of association). 

But the word “membership” is used to refer to all sorts of 

7 It is not entirely clear whether the Court in Jaycees rejected the freedom 

of association claim because it determined that there was no 

infringement or because it determined that the infringement was 

constitutionally permissible. See Seana Valentine Shiffrin, What Is 

Really Wrong with Compelled Association?, 99 Nw. U. L. Rev. 839, 843-

44 (2005) (discussing this ambiguity). Either way, Jaycees supports the 

principle we rely on here. 

8 Crowe has not argued that he is required to personally voice OSB’s 

own views, attend OSB’s meetings, or to refrain from joining other 

organizations or voicing his own opinions. We need not and do not 

address how such other types of requirements would be analyzed.
28 CROWE V. OREGON STATE BAR

relationships: A person might be a member of a public 

library, Costco, AMC, or, back in the day, Blockbuster. 

Those memberships may not send any message at all. 

Whether a reasonable observer will attribute any 

meaning to such memberships will depend on context, and 

there may plausibly be circumstances where membership in 

a group becomes expressive. But as relevant here, the bare

fact that an attorney is a member of a state bar does not send 

any expressive message. A state bar’s primary function is to 

license, regulate, and discipline attorneys—activities that are

essentially commercial in nature. Cf. Rumsfeld, 547 U.S. at 

64 (“[A] law school’s decision to allow recruiters on campus 

is not inherently expressive. Law schools facilitate 

recruiting to assist their students in obtaining jobs.”). And a

reasonable observer understands state bar membership to

mean only that the attorney is licensed by the bar. Thus, 

even when the bar engages in expression, a reasonable 

observer ordinarily would not interpret the fact that the

attorney is a member of the bar to mean that the bar’s 

activities reflect the attorney’s personal views. 

That can be true even if some of the state bar’s 

expression is not germane to the bar’s regulatory purposes. 

In Morrow v. State Bar of California, 188 F.3d 1174 (9th 

Cir. 1999), the plaintiffs argued that the requirement that 

they join the California State Bar infringed their freedom of 

association because that Bar engaged in nongermane 

political activities—specifically, supporting four bills before 

the California legislature. Id. at 1175. We rejected the 

plaintiffs’ argument that “membership alone may cause the 

public to identify plaintiffs with State Bar positions in 

violation of plaintiffs’ First Amendment [freedom of 

association] rights.” Id. at 1177. That holding rested on the 

notion that the public would not associate a state bar’s
CROWE V. OREGON STATE BAR 29

occasional nongermane activities with its members merely 

by virtue of their membership. 

But, in the particular circumstances of this case, Crowe 

has shown that a reasonable observer would attribute 

meaning to his membership in OSB because of the Bulletin 

statements. OSB endorsed the Specialty Bars’ statement

criticizing then-President Trump and suggested that all 

members agreed with it. 

Specifically, the formatting and content of the two 

statements made it appear as though OSB essentially 

adopted the Specialty Bars’ statement. OSB made the 

editorial decision to publish the two statements side-by-side,

surrounded by a single dark green border that was the same 

color as OSB’s logo. And OSB’s statement echoed the 

themes in the Specialty Bars’ statement, using strikingly 

similar language. For example, the Specialty Bars’ 

statement “condemn[ed] speech that incites violence” and 

made clear that it was referring to then-President Donald 

Trump’s speech specifically, offering several examples. 

OSB’s statement likewise criticized the “systemic failure to 

address speech that incites violence.” In context, one would 

assume that OSB’s reference to “speech that incites 

violence” was also referencing then-President Trump. 

OSB’s statement also praised the Specialty Bars 

specifically. OSB said, “The courageous work done by 

specialty bars throughout the state is vital to our efforts and 

we continue to be both inspired and strengthened by those 

partnerships.” By praising the “work” of the Specialty Bars, 

which would presumably include the immediately adjacent 

statement, and describing the relationships between OSB 

and the Specialty Bars as “partnerships,” OSB again 

appeared to implicitly endorse the Specialty Bars’ statement. 
30 CROWE V. OREGON STATE BAR

The Specialty Bars, in turn, “applaud[ed] the Oregon State 

Bar’s commitment to equity and justice by taking a strong 

stand against white nationalism,” and “pledge[d] to work 

with the Oregon State Bar.” Reading those expressions of 

mutual praise, one would interpret the two statements to be 

a reflection of OSB’s and the Specialty Bars’ shared views. 

If OSB had made clear that its own statement reflected 

the views of OSB’s leadership—and not its members—then 

there would be no infringement. But OSB suggested the 

opposite. Although the statement said “[a]s a unified bar, we 

are mindful of the breadth of perspectives encompassed in 

our membership,” it immediately implied that the contents 

of its statement were one thing on which all members agreed. 

It did so by saying that, given that breadth of perspectives,

“we” would focus on “those issues that [were] directly 

within our mission,” which was “gravely” threatened by the 

“current climate of violence, extremism and exclusion.” 

That would seem to suggest that all members agreed with 

what was in the statement because it dealt with topics on 

which there was no “breadth of perspectives.” The statement 

reinforced that idea by using “we” and “our” throughout in 

a way that purported to speak for all members of OSB. For 

instance, it said, “As lawyers, we administer the keys to the 

courtroom.” That could only mean all OSB members, not 

the six OSB officers who signed the statement. 

The implication that OSB was speaking on behalf of all 

the attorneys it regulates was accentuated by the fact that 

those attorneys are called “members,” see Or. Rev. Stat. 

§ 9.160(1), as opposed to something more neutral, such as 

“licensees.” As we have explained, the fact that a state bar 

refers to attorneys as “members,” standing alone, does not 

mean that a reasonable observer would think that an attorney 

shares the views of the bar. But the word “member” does
CROWE V. OREGON STATE BAR 31

connote a stronger relationship than just a regulatory one, 

which makes it more likely that a reasonable observer would 

read a statement like OSB’s to actually speak on behalf of 

the attorneys it regulates. 

The Bulletin statements make this case analogous to 

Carroll v. Blinken, 957 F.2d 991 (2d Cir. 1992). There, 

students were required to pay an annual “activity fee” to their 

university, part of which was used to fund a policy advocacy 

organization called the New York Public Interest Research 

Group, Inc. (“NYPIRG”). Id. at 993-94. NYPIRG sought 

to advance “certain positions on issues of public policy,” 

such as arms control and environmental protection, “through 

research, campus speakers, lobbying the legislature, 

intervening in lawsuits, community organizing, brochures, 

and other methods.” Id. at 994, 997. According to 

NYPIRG’s bylaws, any student who paid the activity fee was 

automatically a “member” of NYPIRG, and “on the strength 

of this by-law, NYPIRG claim[ed]” in its advocacy “to 

represent all students at the nineteen participating 

campuses.” Id. at 995. 

The Second Circuit held that the automatic membership 

policy infringed the students’ freedom of association. Id. at 

1003. The court explained that “NYPIRG expressly 

forge[d] . . . a link” “in the popular mind” between its views 

and the students’ views “when it proclaim[ed] that its 

‘membership’ include[d] all fee paying [university] 

students” and when it “overtly and inaccurately claim[ed] to 

represent the interests of the [university] student body.” Id. 

NYPIRG thus “irredeemably transgressed the proscription 

against forced association.” Id. 

Carroll counsels that if an organization trades on its 

membership in advancing its own views, a reasonable 
32 CROWE V. OREGON STATE BAR

observer may come to (incorrectly) believe that the 

organization speaks for its members even though 

membership is mandatory, and in that circumstance, a 

membership requirement can infringe the freedom of 

association. Considering the totality of the circumstances 

here, OSB traded on its supposedly unified membership to 

bolster its own expression, fostering a misperception about 

the unanimity of its members’ views.

Crowe has also established that the association impaired 

his own expression because he objects to the message sent 

by his membership. He testified at his deposition that he 

disagreed with the Bulletin statements and that he did not 

want to be associated with them. Crowe has thus established 

an infringement on his freedom of association.

B.

Such an infringement on the freedom of association is

nonetheless permissible if it survives exacting scrutiny. 

Mentele, 916 F.3d at 790 & n.3. Under exacting scrutiny, 

the infringement must “serve a compelling state interest that 

cannot be achieved through means significantly less 

restrictive of associational freedoms.”9 Id. at 790 (quoting 

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 

31, 585 U.S. 878, 894 (2018)). The Supreme Court has 

observed that Keller’s germaneness requirement “fits 

comfortably” within the exacting scrutiny framework in the

9 The Supreme Court has mused about whether strict scrutiny should 

replace exacting scrutiny in certain First Amendment contexts. Janus v. 

Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878, 894-

95 (2018). But we have already held that we are “obliged to apply 

‘exacting scrutiny’ to decide whether [a compelled association] is 

constitutionally permissible” because the Court has not overruled its 

precedents applying that test. Mentele, 916 F.3d at 790 n.3.
CROWE V. OREGON STATE BAR 33

state bar association context because states have a strong

interest in “‘regulating the legal profession and improving 

the quality of legal services,’” as well as in “allocating to the 

members of the bar, rather than the general public, the 

expense of ensuring that attorneys adhere to ethical 

practices.” Harris v. Quinn, 573 U.S. 616, 655-56 (2014)

(quoting Keller, 496 U.S. at 13). That statement indicates 

that when a state bar requires attorneys to associate with 

germane activities, that requirement survives exacting 

scrutiny.10

Consistent with that principle, we held in Gardner v. 

State Bar of Nevada, 284 F.3d 1040 (9th Cir. 2002), that 

even if the public might associate attorneys with a state bar’s 

expressive activities, that association is permissible if the 

activities are germane. There, the State Bar of Nevada 

engaged in a public relations campaign that sought to “dispel 

any notion that lawyers are cheats or are merely dedicated to 

their own self-advancement or profit.” Id. at 1043. The 

10 On this point, we agree with the Fifth Circuit, which has held that 

“[c]ompelled membership in a bar association that is engaged in only 

germane activities survives [exacting] scrutiny.” McDonald v. Longley, 

4 F.4th 229, 246 (5th Cir. 2021). But we disagree with the Fifth Circuit’s 

holding that if a state bar engages in nongermane activities, compelled 

membership is necessarily unconstitutional. See id.; see also 

Boudreaux v. La. State Bar Ass’n, 86 F.4th 620, 632-34 (5th Cir. 2023)

(holding that a state bar violated its attorneys’ right to freedom of 

association by, among other things, tweeting about the health benefits of 

eating walnuts and promoting a holiday charity drive). As we have 

explained, in many circumstances, membership in a state bar, standing 

alone, has no expressive meaning, and the public will not associate the 

bar’s members with the bar’s activities. In those circumstances, the 

membership requirement does not infringe the freedom of association—

even if the bar engages in nongermane activities such as offering dietary 

advice or promoting a charity drive. 
34 CROWE V. OREGON STATE BAR

campaign instead promoted the notion that lawyers “strive 

to make the law work for everyone.” Id. An attorney 

objected to the campaign in part because he believed lawyers 

“are supposed to serve their clients, not ‘everyone.’” Id. 

We acknowledged that the attorney was forced to 

associate with the campaign in two ways. First, his dues 

were used to fund the campaign. Id. at 1042. Second, he

was associated with the State Bar of Nevada’s activities in 

the public eye: The public relations campaign spoke about 

the ethics and activities of all of that Bar’s members, so it 

was likely to be attributed to those members. See id. We 

recognized that such “[c]ompulsion to be associated with an 

organization whose very public campaign proclaims a 

message one does not agree with is a burden.” Id. But we 

concluded that the campaign was germane to the Bar’s 

purposes, so the burden did not violate the attorney’s

freedom of association. Id. at 1042-43. The Bar had a

compelling interest in advancing public understanding of the 

role of attorneys, and in doing so, it could purport to 

represent the state’s attorneys without violating their 

freedom of association rights. See id. at 1043.

In this case, by contrast, OSB engaged in nongermane 

conduct by adopting the Specialty Bars’ statement. The

“guiding standard” in determining whether an activity is 

germane is whether it is “necessarily or reasonably incurred 

for the purpose of regulating the legal profession or 

‘improving the quality of the legal service available to the 

people of the State.’” Keller, 496 U.S. at 14 (quoting 

Lathrop, 367 U.S. at 843). At least some of the Specialty 

Bars’ statement was not germane. The statement opened by 

describing the Specialty Bars’ “commitment to the vision of 

a justice system that operates without discrimination,” but 

much of its criticism of then-President Trump did not relate 
CROWE V. OREGON STATE BAR 35

to the justice system at all—for instance, it criticized Trump 

for describing Haiti and African countries as “shithole 

countries.” Although preventing violence and racism can 

relate to improving the legal system, the connection here was 

too tenuous. See Schneider v. Colegio de Abogados de P.R., 

917 F.2d 620, 632 (1st Cir. 1990) (holding that a bar’s

activities that “rest[] upon partisan political views rather than 

on lawyerly concerns” are not germane). Because the 

Specialty Bars’ statement was not germane, OSB’s adoption 

of the Specialty Bars’ statement was not germane either. 

OSB has not offered any other justification for associating 

its members with the Bulletin statements. Thus, the 

infringement does not survive exacting scrutiny.11

C.

The remedy for this violation need not be drastic. Of 

course, if OSB engaged only in germane activities, it would 

not infringe the freedom of association. But even if OSB

does engage in nongermane activities, in situations in which 

those activities might be attributed to its members it could 

include a disclaimer that makes clear that it does not speak 

on behalf of all those members.

12 Cf. PruneYard Shopping 

11 Because we conclude that OSB’s adoption of the Specialty Bars’ 

statement was not germane, we do not address any of the lobbying 

challenged in this case. The district court may consider the lobbying on 

remand.

12 We recognize that First Amendment violations are not always cured 

by a disclaimer. If the state compels a speaker to actually speak (or 

otherwise disseminate the state’s message), the state cannot avoid a First 

Amendment problem simply by providing a disclaimer that says the 

speech is compelled. E.g., Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n 

of Cal., 475 U.S. 1, 12-16 & n.11 (1986) (plurality opinion) (holding that 

a disclaimer did not avoid a First Amendment violation where the 
36 CROWE V. OREGON STATE BAR

Ctr. v. Robins, 447 U.S. 74, 87 (1980) (holding that a 

requirement that a public shopping center allow leafleting 

did not violate the First Amendment in part because “[t]he 

views expressed by members of the public in passing out 

pamphlets or seeking signatures for a petition . . . [would] 

not likely be identified with those of the [shopping center] 

owner”); Lindke v. Freed, 601 U.S. 187, 202 (2024) 

(“Markers like [disclaimers] give speech the benefit of clear 

context.”). OSB could also lessen the risk of misattribution 

by following the California State Bar’s lead and referring to 

attorneys as “licensees,” rather than “members.” See Cal. 

Bus. & Prof. Code § 6002.

We leave it to the district court to determine on remand, 

with further input from the parties, the appropriate forwardlooking relief. We hold only that Crowe has established an 

infringement on his freedom of association and that the

infringement does not survive exacting scrutiny. 

V.

For the foregoing reasons, we dismiss the claim against 

OSB and the claim for retrospective relief against the 

individual officer Defendants. We reverse the judgment of 

the district court as to the freedom of association claim for 

prospective equitable relief against the individual officer 

Defendants and remand for further proceedings. 

DISMISSED in part; REVERSED in part and 

REMANDED for further proceedings.

government required a company to disseminate the views of a third 

party). But, here, the only infringement Crowe has shown is that OSB, 

through its own speech, has suggested that Crowe shares OSB’s views. 

A disclaimer would have prevented that infringement from occurring in 

the first place.