Boudreaux v. LA State Bar Assoc ( 2023 )

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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 13, 2023
No. 22-30564 Lyle W. Cayce
____________ Clerk
Randy Boudreaux,
Plaintiff—Appellant,
versus
Louisiana State Bar Association,
a Louisiana Nonprofit Corporation;
Louisiana Supreme Court;
Bernette J. Johnson, Chief Justice of the Louisiana Supreme Court;
Scott J. Crichton,
Associate Justice of the Louisiana Supreme Court for the Second District;
James T. Genovese,
Associate Justice of the Louisiana Supreme Court for the Third District;
Marcus R. Clark,
Associate Justice of the Louisiana Supreme Court for the Fourth District;
Jefferson D. Hughes, III,
Associate Justice of the Louisiana Supreme Court for the Fifth District;
John L. Weimer,
Associate Justice of the Louisiana Supreme Court for the Sixth District;
Unidentified Party, successor to the Honorable Greg Guidry as
Associate Justice of the Louisiana Supreme Court for the First District,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-11962
______________________________
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Before King, Smith, and Elrod, Circuit Judges.
Jerry E. Smith, Circuit Judge:
The First Amendment protects an individual’s right both to speak and
not to speak. Similarly, it protects one’s right to associate and not to asso-
ciate. Janus v. Am. Fed’n of State, Cnty., and Mun. Emps., Council 31,
138 S. Ct. 2448, 2463 (2018). Yet every lawyer in this circuit is required to
join his or her state bar association to practice law. And those bar associations
speak publicly on a variety of issues—some of them very controversial. That
raises obvious constitutional concerns.
Although lawyers do not have a categorical First Amendment right to
disassociate from their state bar, compulsory bar membership is unconstitu-
tional if a bar’s speech is not germane to regulating lawyers or improving the
quality of legal services in the state. Keller v. State Bar of Cal., 496 U.S. 1, 13–
14 (1990). Two years ago, we made that clear when we held that the State
Bar of Texas violated its members’ rights to free speech and association by
engaging in non-germane political advocacy. See McDonald v. Longley,
4 F.4th 229, 237, 245, 252 (5th Cir. 2021) (Smith, J.), cert. denied, 142 S. Ct.
1442 (2022).
In response to McDonald, the Louisiana State Bar Association (the
“LSBA”) changed its internal policies and stopped almost all of its legislative
activity. But Randy Boudreaux—a lawyer in Louisiana—claims that the
LSBA is still flouting that decision. He insists that the organization’s ongoing
expression is not germane and that his forced membership in the LSBA vio-
lates his speech and association rights.
To its credit, the LSBA has stopped much of its objectionable activity.
But despite the LSBA’s scruples, Boudreaux has still identified some exam-
ples of non-germane speech. We therefore reiterate what we said in
McDonald—if mandatory bar associations are going to compel individuals to
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associate and speak, they must stay in their constitutionally prescribed lane.
Because the LSBA veers, we AFFIRM in part and REVERSE in part,
REMAND, and RENDER an injunction with respect to Boudreaux only.
I.
A.
The LSBA is a mandatory bar association. Attorneys are required to
join and pay fees to the organization as a condition of practicing law in the
state.1 Although the organization does not admit, license, or directly disci-
pline lawyers in Louisiana, it still has a large regulatory and informational
role. Among other things, it issues advisory opinions about the regulation of
lawyers, offers continuing legal education (“CLE”) programs, publishes the
Louisiana Bar Journal, and promotes legal content through emails and social
media. In everything, the LSBA’s stated mission is “to regulate the practice
of law” and “promote the welfare of the profession in the [s]tate.”
Additionally, until July 2021, the LSBA engaged in a variety of politi-
cal speech and advocacy. The House of Delegates (the LSBA’s policymaking
body) had a Legislation Committee, which adopted formal “policy posi-
tions” on proposed policies and pending bills in the state legislature. Though
some of those bills implicated the legal profession, they primarily regulated
the public at large. To name just a few, the LSBA took positions on anti-
discrimination laws for LGBT individuals, compliance with a state equal pay
act, a rewriting of the state’s high school civics curriculum, a moratorium on
_____________________
1
See Articles of Incorporation, La. State Bar Ass’n (revised Dec. 14, 2021),
https://www.lsba.org/documents/Executive/ArticlesIncorporation.pdf (“[N]o person
shall practice law in this State unless he/she is an active member, in good standing, of this
Association.”); see also La. Stat. Ann. § 37:213. The LSBA’s Articles of Incorporation
have been adopted as rules of the state supreme court. Lewis v. La. State Bar Ass’n,
792 F.2d 493, 495 (5th Cir. 1986).
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executions in Louisiana pending certain criminal justice reforms, licensure of
midwives, and concealed carry by school officials.
Boudreaux has been a member in good standing of the LSBA since
1996. Upset that he was forced to associate with and contribute to the afore-
mentioned causes, Boudreaux sued the LSBA, the Louisiana Supreme Court,
and its justices (collectively, “the LSBA”) in 2019. He claimed that compul-
sory membership in the LSBA violated his rights to free speech and
association.
The defendants moved to dismiss, and the district court granted the
motion. The court found that Boudreaux’s freedom of association claim was
barred by Supreme Court precedent. It also found that any objection to the
LSBA’s mandatory fees was barred by the Tax Injunction Act, which pro-
hibits challenges to state taxation based on federal law. And finally, the court
found that Boudreaux lacked standing to bring a free speech claim because he
had not actually objected to speech he disagreed with and had used the
LSBA’s available opt-out procedures. Boudreaux promptly appealed.
B.
The Fifth Circuit panel that heard Boudreaux’s appeal also heard and
decided McDonald. McDonald was a nearly identical challenge to the State
Bar of Texas, which was also a mandatory bar association and also used com-
pulsory member fees on a variety of controversial political advocacy.
McDonald, 4 F.4th at 239. The plaintiffs brought freedom of speech and
freedom of association claims, contending that they could not be compelled
to fund speech that they did not support. They also averred that the state
bar’s “opt-out” procedures were constitutionally insufficient. Id. at 241,
252–53.
McDonald began by synthesizing a long line of prior caselaw. Around
sixty years ago, a plurality of the Supreme Court stated that it did not violate
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an individual’s freedom of association for a bar association to charge manda-
tory fees to fund its core functions. Lathrop v. Donohue, 367 U.S. 820, 843
(1961) (plurality). But later, in the context of public-sector unions, the Court
held that unions could only require non-members to fund “germane” collec-
tive bargaining, not unrelated political advocacy. See Abood v. Detroit Bd. of
Educ., 431 U.S. 209, 235–36 (1977). Then, in Keller, the Court combined
Lathrop and Abood to hold that a mandatory bar association did not violate the
free speech rights of its members as long as the bar’s speech was germane to
(1) the regulation of lawyers or (2) the improvement of legal services in the
state. 496 U.S. at 13–14.
The plaintiffs in McDonald suggested that lawyers could not be
constitutionally required to join a bar association that engaged in any legisla-
tive activity. 4 F.4th at 247. That argument echoed the watershed Janus
decision, which “overruled” Abood and held that members of a profession
could not be required to fund a public-sector union at all or even to fund the
union’s generally applicable collective bargaining. Janus, 138 S. Ct. at 2459–
60, 2486. But McDonald noted that Janus did not overrule Keller sub silentio,
even if the latter case now rested on “moth-eaten foundations.” See 4 F.4th
at 243 n.14 (quotation omitted).
Bound by Keller, McDonald held that the constitutionality of manda-
tory bar associations still turned on “germaneness.” Id. at 249; see also id.
at 246, 252. If a bar association’s only speech was germane, then a state could
require lawyers to be paying members of a bar association. Conversely, if a
bar association engaged in nongermane speech, then it failed heightened First
Amendment scrutiny. Id. at 246, 252. Because the Texas Bar did engage in
non-germane activity, its mandatory membership was subject to exacting
scrutiny (which it necessarily failed). Id.
Finally, McDonald held that the procedures of the State Bar of Texas
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for notifying members of its speech and giving them a chance to opt-out were
constitutionally insufficient. Id. at 253. Those protective measures are also
known as “Hudson procedures,” named after Chicago Teachers Union, Local
No. 1 v. Hudson, 475 U.S. 292 (1986). Hudson arose after Abood, when unions
were permitted to charge non-members fees for germane collective bargain-
ing activity. Id. at 294. The Court thus held that unions were required to
give non-members adequate explanation of how their money was being spent
and an opportunity to get a refund if the union broke the rules. Hudson,
475 U.S. at 310. Keller suggested that a bar association could also satisfy its
First Amendment obligations by “adopting the sort of procedures described
in Hudson.” Keller, 496 U.S. at 17.
But in McDonald, the Texas Bar’s procedures “[did] not furnish
Texas attorneys with meaningful notice regarding how their dues [would] be
spent. Nor [did] it provide them with any breakdown of where their fees go.”
McDonald, 4 F.4th at 254. Therefore, the plaintiffs were entitled to relief on
their free speech, free association, and inadequate notice claims.
C.
On the same day that we issued McDonald, we resolved Boudreaux’s
appeal. Boudreaux v. La. State Bar Ass’n (Boudreaux I), 3 F.4th 748 (5th Cir.
2021). Echoing McDonald, we made it clear that Boudreaux would have a
valid free association claim if the LSBA engaged in non-germane speech.
“Discovery may bear out that LSBA does not actually engage in any non-
germane activity.” Id. at 756. But we reversed and remanded for discovery
on the nature of the LSBA’s activities. Id. We also held that the Tax Injunc-
tion Act did not apply to professional fees, so the district court had jurisdic-
tion over Boudreaux’s speech claim. Id. at 758. And finally, we held that
Boudreaux had standing to challenge opt-out procedures even if he had not
used them—his alleged injury was the inability to adequately discover what
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the LSBA was up to. Id. at 760. We ultimately remanded for the district
court to follow McDonald and proceed to the merits.
D.
Just six days after McDonald and Boudreaux I were announced, the
LSBA suspended its Legislation Committee and all of its legislative activities.
The suspension was set to last from July 2021 until January 2022, when the
House of Delegates was next slated to meet. In the meantime, the Louisiana
Supreme Court adopted a new rule, codifying the germaneness requirement
from McDonald. According to the new rule,
[t]he LSBA shall limit its activities to those that are consti-
tutionally germane to its purposes, and shall limit its legislative
activities to issues involving practice and procedure, the judi-
cial system, access to the courts, the compensation of judges or
lawyers, or the legal profession, and to responding to any re-
quests for information received from the legislature. Any
legislative positions on issues within the scope of this rule shall
be voted upon and approved in advance by the LSBA’s Board
of Governors and thereafter published to members of the
LSBA.
La. S. Ct. R. XVIII, § 6.
Then, at the House of Delegates’s January 2022 meeting, the LSBA
(1) rescinded all its existing policy positions, (2) revised the LSBA’s bylaws
accordingly, and (3) suspended any activity “not within [the] scope” of Rule
XVIII, § 6. And although LSBA previously paid for a lobbyist, its new budget
allocated just $10,000 to monitor potential legislation that could be germane
under McDonald. Indeed, Boudreaux concedes that since McDonald, “the
LSBA has not engaged in legislative activity.”
The LSBA’s post-McDonald changes work in concert with the organ-
ization’s preexisting notice and objection procedures. When the LSBA
engages in speech, it notifies its members in a variety of ways. For one, it
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publishes both prospective annual budgets and retrospective audited revenue
reports. Members may always ask for more detail about expenditures by
emailing the bar’s treasurer. Any legislative positions are also emailed to
members in so-called “Bar Briefs.” Additional activities are regularly an-
nounced through email, Facebook, Twitter, and Instagram.
If an LSBA member objects to his funds being used to support a par-
ticular cause (legislative or otherwise), he has 45 days to notify the LSBA in
writing. The pro rata amount of dues contributed to the activity in question
is placed into escrow until the objection has been resolved.2 The Board then
reviews the objection and issues a refund within 60 days (or refers the matter
to arbitration). The district court found that all timely objections have so far
resulted in refunds. Nevertheless, Boudreaux has not used the formal object-
tion procedures to protest any of the LSBA’s activities since McDonald.
E.
Notwithstanding the LSBA’s reforms, Boudreaux moved for a prelim-
inary injunction in district court following Boudreaux I. The district court
considered the motion as part of a bench trial on the merits. It ultimately
entered judgment in favor of defendants, denying the motion for a prelim-
inary injunction, and dismissing Boudreaux’s complaint with prejudice.
The district court explained that it found most of Boudreaux’s claims
to be moot. Because the LSBA had ceased its legislative activity, disbanded
the Legislation Committee, and limited future political speech to germane
activity within the definition of McDonald, there was no live controversy
between the parties—at least in regard to pre-McDonald speech. Similarly,
_____________________
2
For legislative activities, the pro rata amount is calculated as a percentage of all
the LSBA’s legislative activity, not just the particular position that the objecting member
opposes.
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any claims about future speech were speculative and unripe. The only
justiciable disputes between the parties were the allegations that the LSBA
had engaged in non-germane speech between McDonald and the trial.
Yet the district court still ruled against Boudreaux on the merits of his
remaining First Amendment claims. Before trial, the parties stipulated to a
list of the LSBA’s speech that was in dispute. The district court went
through those examples blow-by-blow, finding that the challenged speech
was either germane under McDonald or not a “major activity” of the LSBA,
and therefore not a constitutional violation. It also found that the LSBA’s
notice procedures were adequate.
Boudreaux appeals the judgment for the second time. “The standard
of review for a bench trial is well established: findings of fact are reviewed for
clear error and legal issues are reviewed de novo.” Lewis v. Ascension Par.
Sch. Bd., 806 F.3d 344, 353 (5th Cir. 2015) (quotation omitted).
II.
A mandatory bar association can require lawyers in its jurisdiction to
be members and pay dues to the bar only if its speech is “germane.”
McDonald, 4 F.4th at 245. Speech is “germane” to a bar association’s pur-
poses if 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). If a bar’s speech activities are germane, then there is no free
association or free speech problem with compulsory membership. McDon-
ald, 4 F.4th at 246. But if a bar engages in non-germane speech, then forced
membership is subject to “exacting scrutiny,” which it “fails.” Id.3
_____________________
3
McDonald’s First Amendment analysis was identical for both the plaintiffs’ free-
dom of association claim and their freedom of speech claim. Compare 4 F.4th at 245–46
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That raises three questions for our review. First, what speech can we
consider in this case? That is, which claims are justiciable after the LSBA’s
post-McDonald reforms? Second, is the LSBA’s ongoing speech germane?
And third, are the LSBA’s notice and opt-out procedures constitutionally
adequate? We will address each issue in turn.
A.
We begin, as we must, with justiciability. Article III limits our juris-
diction to “live” cases and controversies. Freedom From Religion Found., Inc.
v. Abbott, 58 F.4th 824, 831 (5th Cir. 2023). A case is no longer live if “the
parties lack a legally cognizable interest in the outcome,”4 or it becomes
“impossible for a court to grant any effectual relief whatever to the prevailing
party.”5 If any set of circumstances eliminates the “actual controversy”
during the duration of the lawsuit, the case becomes moot. Ctr. for Individual
Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006).
To determine whether Boudreaux’s claims are moot, we proceed
“claim-by-claim.” United States v. Vega, 960 F.3d 669, 673 (5th Cir. 2020).
The complaint lists three counts: a challenge to mandatory membership, a
challenge to mandatory bar fees, and a challenge to the LSBA’s notice and
opt-out procedures. Yet, at no point in McDonald did the First Amendment
analysis turn on the difference between membership and dues. See 4 F.4th
at 246, 252, 255. Both Lathrop and Keller focused on compulsory dues, see
Keller, 496 U.S. at 9 (citing Lathrop, 367 U.S. at 827–28), but McDonald
_____________________
(freedom of association discussion), with id. at 252 (freedom of speech discussion). So too
here. The speech and association claims rise and fall together.
4
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quotation omitted).
5
Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012) (quotation
omitted) (cleaned up).
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applied those cases to the question of whether “lawyers may constitutionally
be mandated to join a bar association.” 4 F.4th at 244 (emphasis added).
And in conclusion, McDonald made clear that compulsory bar membership
and fees both implicate the First Amendment and both turn on “germane-
ness.” See id. at 255.
Therefore, it is more helpful to distinguish among Boudreaux’s spe-
cific post-McDonald contentions. First, he contends that his forced member-
ship in the LSBA violates his First Amendment rights even if the LSBA
engages only in germane speech. In effect, he asks us to go one step beyond
McDonald and declare a per se ban on mandatory bar associations. Second,
Boudreaux claims that the LSBA violates McDonald by engaging in non-
germane speech. And third, he alleges that the LSBA’s Hudson procedures
are inadequate.
No one disputes that the first and third claims are justiciable. Loui-
siana still requires Boudreaux to be a member of the LSBA and pay dues, and
the LSBA has not meaningfully changed its opt-out procedures since the case
was filed. Those are “live” disputes. But the justiciability of Boudreaux’s
McDonald claim depends on the particular speech in question. Boudreaux
targets three categories of LSBA speech: (1) its pre-McDonald activity, (2) its
post-McDonald activity, and (3) any potential future activity. Only the sec-
ond of those disputes is “live.”
Boudreaux’s claim that the LSBA’s pre-McDonald activity violates
the First Amendment is moot because the LSBA has ceased all the conduct
that Boudreaux originally challenged. After McDonald, the LSBA terminated
all legislative activity. It abolished its special political arm and consolidated
all lobbying activity in its general governing board. And it incorporated Loui-
siana Supreme Court Rule XVIII, Section 6, into its bylaws, which prohibits
the LSBA from engaging in any non-germane speech. In short, the LSBA’s
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official policy is that it will do no more than we declared was lawful in
McDonald. Boudreaux even concedes that since McDonald, there have been
no legislative activities of the kind he complained about before McDonald.
True, voluntary cessation does not normally moot a case. See Friends
of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189
(2000). If a defendant willingly stops complained-of conduct, we can still
adjudicate the dispute unless it is “absolutely clear that the allegedly wrong-
ful behavior could not reasonably be expected to recur.” Sossamon v. Lone
Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009) (quotation omitted),
aff’d, 563 U.S. 277 (2011).
But where the defendant is a government actor, the presumption flips.
We presume that state actors “act in good faith,” Freedom From Religion
Found., 58 F.4th at 833, and that “formally announced changes to official
governmental policy are not mere litigation posturing,” Sossamon, 560 F.3d
at 325. So, for example, when the state of New York amended a gun law that
had been challenged on Second Amendment grounds, the Supreme Court
dismissed the appeal as moot, even though the amendment might otherwise
have been voluntary cessation. See N.Y. State Rifle & Pistol Ass’n v. City of
New York (NYSRPA), 140 S. Ct. 1525, 1526 (2020) (per curiam).
Here, the LSBA—the state agency for regulating lawyers—changed
its bylaws and procedures to accord with McDonald. That is the kind of
formal change contemplated by Sossamon. “[N]othing in the record suggests
that the Board will reimplement” its older, illegal policy positions. Freedom
From Religion Found., 58 F.4th at 833. To the contrary, the LSBA has avoided
all non-germane legislative advocacy since McDonald.
Boudreaux points out that the LSBA has not renounced its prior
political advocacy. But there is no requirement that a government actor
renounce its prior conduct in order to moot a case. For example, in
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NYSRPA, the State of New York did not renounce its prior limitations on
concealed carry, but amended the law only to obviate the alleged injury. See
140 S. Ct. at 1526. That is effectively what the LSBA did here. To the extent
Boudreaux wants the LSBA to stop its past conduct and follow McDonald,
there is nothing we can do by court order that the LSBA has not done already.
See id. Therefore, Boudreaux’s pre-McDonald challenges to the LSBA’s past
conduct are nonjusticiable.
Boudreaux responds that the LSBA’s past speech proves that there is
always a risk of future non-germane speech. In effect, Boudreaux wants a
prospective ruling barring the LSBA from any future non-germane conduct.
Yet that is a textbook example of an unripe dispute. See Nike, 568 U.S. at 97.
A plaintiff has no standing to seek prospective relief “merely on the basis of
being ‘once bitten.’” Id. at 98 (citing Los Angeles v. Lyons, 461 U.S. 95, 109
(1983)). The possibility that the LSBA will engage in non-germane advocacy
after McDonald is pure conjecture. If someday in the future the LSBA
appears to violate Boudreaux’s rights, he is more than welcome to bring a
lawsuit. But until he is actively being aggrieved—or faces the imminent
threat of illegal actions—his claim is not justiciable.
Nevertheless, Boudreaux still has his claims that the LSBA did speak
and continues to speak in non-germane ways after McDonald. That is an
ongoing dispute that we have the power to adjudicate. The district court
rightly held that those claims were justiciable and considered them on the
merits. We do the same.
B.
The LSBA violates Boudreaux’s speech and association rights only if
its speech is non-germane to the regulation of lawyers or the improvement of
legal services. McDonald, 4 F.4th at 246.
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1.
At the outset, Boudreaux contests that premise. He insists that his
rights to free association and speech are harmed even if the LSBA only
engages in germane speech. Recall that a state cannot compel non-union
members to subsidize public-sector unions, even if the unions use those dues
only on germane collective bargaining. Janus, 138 S. Ct. at 2459–60, 2464.
Relying on that reasoning, Boudreaux effectively asks us to hold that
mandatory bar associations violate the First Amendment, full stop.
But that contradicts Keller, which held that “[t]he State Bar may
. . . constitutionally fund activities germane to [its] goals out of the mandatory
dues of all members.” Keller, 496 U.S. at 14. It also flies in the face of
McDonald, where we held that “the plaintiffs can be compelled to join the Bar
if it ceases its non-germane activities.” McDonald, 4 F.4th at 253 n.41.
It is true that Janus, by overruling Abood, cast serious doubt on Kel-
ler’s premise that bar associations can require membership and fees to
advocate for germane causes. At least two Justices are willing to reconsider
“whether Keller is sound precedent” in light of Janus. Jarchow v. State Bar
of Wis., 140 S. Ct. 1720, 1721 (2020) (Thomas, J., dissenting from the denial
of certiorari, joined by Gorsuch, J.). But as a lower court, we are bound by
Keller. We are also bound to McDonald by this circuit’s rule of orderliness.6
McDonald requires “exacting” First Amendment scrutiny of a man-
datory bar association that engages in non-germane speech. 4 F.4th at 246,
252. But if a state bar engages only in germane speech, there is neither a free
speech nor a free association violation. See id. at 246. We must therefore
_____________________
6
United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014) (“It is a well-settled
Fifth Circuit rule of orderliness that one panel of our court may not overturn another
panel’s decision, absent an intervening change in the law, such as by a statutory amend-
ment, or the Supreme Court, or our en banc court.” (quotation omitted)).
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decide whether the LSBA’s challenged speech is germane.
2.
To be “germane,” bar association speech must be reasonably related
to the bar association’s purposes of (1) regulating the legal profession or
(2) improving the quality of legal services. McDonald, 4 F.4th at 244 (citing
Keller, 496 U.S. at 13–14). Although the Supreme Court has not given precise
guidance about what degree of relatedness is required, it has described a spec-
trum: Advocacy regarding gun control would be obviously non-germane, but
activities related to lawyer discipline would be obviously germane. Keller,
496 U.S. at 16. Where the LSBA’s activity falls on that spectrum depends on
the particular speech at issue.
Before trial, Boudreaux stipulated to which activities of the LSBA he
was challenging. Most of those were pre-McDonald legislative activities or
policy positions, all of which the LSBA has ceased or rescinded. As described
above, Boudreaux’s challenges to that speech are moot. That leaves a very
short list of activity that is allegedly illegal: seventeen tweets and emails that
post-date the LSBA’s July 2021 reforms. On appeal, he also contests the
LSBA’s remaining policy positions on law-related subjects. And finally, at
oral argument, Boudreaux pointed out several messages that the LSBA
released on its website related to LGBT “Pride Month.” We consider each
in turn.
i.
Boudreaux begins by suggesting that even after McDonald, the LSBA
takes several “policy positions” on law-related policy proposals. For exam-
ple, the LSBA takes positions on “taxation of legal services,” and “access to
justice” initiatives.
But Boudreaux forfeited any challenge to those policy positions. For
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one thing, they are not included in his stipulated list of challenged activities.
Nor, does it seem, were they raised at trial, even though Boudreaux had the
opportunity to do so.7 Even if we were to consider them, the LSBA’s policy
positions are directly related to the regulation of the legal profession and the
provision of legal services. In McDonald, we held that lobbying about the
“appointment of pro bono volunteers” and “the law governing lawyers” was
germane. 4 F.4th at 248. The LSBA’s extant legislative efforts are com-
parable and therefore lawful.
ii.
Next, Boudreaux challenges a group of “Wellness Wednesday”
tweets relating to the health and wellbeing of lawyers. For example, the
LSBA “tout[ed] the purported benefits of walnuts,” “urg[ed] readers to
. . . work out at least three times per week,” and encouraged lawyers to get
“sunlight.”
Those statements fail the germaneness test from McDonald and Keller
because they do not sufficiently relate to legal practice or the legal profession.
Even assuming healthier lawyers are generally more effective lawyers, the
LSBA is not an all-encompassing wellness service that may comment on
every facet of lawyers’ health and fitness. We generally give bar associations
leeway in determining how best to improve legal services, as is appropriate
given their expertise in regulating the legal profession. See McDonald, 4 F.4th
at 249. But if bar associations may opine, advise, and inform on anything that
they deem is generally conducive to attorney health and wellness, there is no
limiting principle.
If a bar association may tout the health benefits of broccoli, may it also
_____________________
7
See Offshore Drilling Co. v. Gulf Copper & Mfg. Corp., 604 F.3d 221, 225 (5th Cir.
2010) (“Issues not raised in the district court . . . are not considered.”).
16
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advise attorneys to practice Vinyasa yoga, adhere to a particular workout
regimen, or get married and have children, if it believes that those activities
improved attorney wellness and therefore the quality of legal services in the
state? How remote or indirect can the purported benefit to legal services be?
The LSBA offers no clear answer, nor can we discern any principled line once
we allow advice that is not inherently tied to the practice of law or the legal
profession.
The germaneness standard therefore requires inherent connection to
the practice of law and not mere connection to a personal matter that might
impact a person who is practicing law. Promoting diversity efforts at law
firms is germane, but opining on affirmative action is not. Raising awareness
of the failure of firms to retain women is germane, but speech encouraging or
discouraging abortion (or abortion insurance coverage for attorneys) is not.
Similarly, advice about software designed for attorneys’ use is germane, but
recommending that all attorneys purchase new iPhones is not.
If a bar association provides advice, that advice must inherently relate
to the legal profession or the practice of law. Advice is not germane just
because, in the association’s view, it improves “wellness” and therefore the
practice of law indirectly. Although walnuts, exercise, and Vitamin D may
be beneficial, they fall outside the LSBA’s purview, at least when they are the
basis of generic advice to attorneys about health and fitness.
Another set of tweets regarding technology and safety announcements
are not germane for similar reasons. One tweet informed lawyers about an
iPhone software update, as it would bring “new upgrades” to the Notes
application. Those, too, are not inherently about the practice of law or the
legal profession more generally. They therefore do not sufficiently relate to
improving the practice of law in the state. See id. at 247.
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iii.
Third, Boudreaux objects to tweets promoting community-
engagement opportunities for lawyers. Specifically, the LSBA notified
lawyers of the 69th Annual Red Mass at St. Louis Cathedral (a Catholic ser-
vice celebrating all members of the legal profession, regardless of religious
affiliation), and it informed members of holiday charity drives for Christmas
and Halloween. The LSBA responds that it is important for lawyers in the
state to participate in community events and pro bono work.8 Those bring
goodwill to the legal profession, which in turn improves the perception and
practice of law in the state.
We agree with Boudreaux. We acknowledge that something “ideolog-
ically charged” may still be germane. McDonald, 4 F.4th at 249 n.28. Indeed,
McDonald allowed the Texas Bar to host a “directory” that “merely pro-
vide[d] information for attorneys interested” in pro bono opportunities “to
connect with related organizations.” Id. at 251. But—critically—that direc-
tory centered on legal rather than generic pro bono and charitable opportunities
and included activities such as supporting criminal defense, addressing
improper attorney conduct, helping with tax issues, and making legal services
accessible to low-income persons. See id. at 251 & n.34. Likewise, Louisi-
ana’s Code of Professionalism focuses on attorneys’ “responsibility to the
judicial system, the public, our colleagues, and the rule of law.” Code of Pro-
fessionalism, La. State Bar Ass’n, supra.
With those examples in mind, we turn to the LSBA actions Boudreaux
challenges. Generic Christmas and Halloween charity drives may be helpful
_____________________
8
See Code of Professionalism, La. State Bar Ass’n,
https://www.lsba.org/Members/LegalLibrary.aspx (last visited July 27, 2023) (calling on
lawyers to “work to protect and improve the image of the legal profession in the eyes of the
public”).
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to the community, and they may even―in some diffuse sense―increase
goodwill toward the legal profession. But unlike the pro bono provision of legal
services, they are not sufficiently germane to the regulation of the legal
profession or the improvement in quality of legal services. See McDonald,
4 F.4th at 250–51. If the LSBA wishes to engage in charitable activities and
give back to the community, it should do so. But those efforts must be ger-
mane, and they generally are not germane unless they involve the LSBA’s
character as a legal organization rather than a generic organization or a collec-
tive of charity-minded individuals.
This analysis also exposes the inherent problem with the LSBA’s
defense of “goodwill,” which suffers from the same line-drawing problem
that its defense of “wellness” did. We generally defer to bar associations’
policy decisions on how best to regulate the legal profession. McDonald,
4 F.4th at 249. But if anything that purportedly promoted “goodwill” were
germane because it, in some attenuated fashion, improved the quality of legal
services, there would be almost no limit to what bar associations could do in
the name of goodwill, whether it be taking public stances on controversial
issues to curry favor among certain segments of the electorate or advertising
activities entirely unrelated to the law. The distinction is akin to the one
between content and viewpoint: Today, we restrict content by requiring
some direct relation to legal practice but leave it to the LSBA to determine
how it should best operate within those constraints.
The same applies to advertisements of community events: Although
they may increase goodwill abstractly, they are not inherently related to
actual legal practice. The LSBA’s charity drives and advertisement of the
Red Mass were therefore not germane.
iv.
The LSBA’s ventures into the realm of public policy and social issues
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are also not germane. In August 2021, the LSBA shared a Reuters article with
the caption: “An in-depth look at ways the [American Bar Association] . . .
has focused on student loan debt over the past year, and the effects that debt
has had on many young lawyers’ life decisions.”
Certainly, that article is specific to lawyers. The test from McDonald,
however, is not about whether speech is “law-related,” but whether it is
related to “regulating the legal profession and improving the quality of legal
services.” See 4 F.4th at 250. That tweet falls short of that standard. It is
not clear how merely reading the article would improve a lawyer’s practice.
The article just details the burden that debt can impose on a young lawyer
and then highlights the Administration’s and the American Bar Association’s
efforts to enact loan forgiveness.9 If anything, the thrust of the article is
backhanded support for student-debt relief, a nakedly political position.
The LSBA suggests that information about looming policy changes
can itself be a benefit where lawyers care about the information or the infor-
mation is relevant to their lives. And undoubtedly, young lawyers care about
student debt.10 But they also care about myriad things, including healthcare,
family policy, social issues, criminal justice reform, even interest rates and
financial news. Can the LSBA share news articles about those topics too?
We are chary of any theory of germaneness that turns a mandatory bar
_____________________
9
See Karen Sloan, ‘Debt transformed my life’: Lawyers weigh in on student loan
reprieve, Reuters (Aug. 10, 2021), https://www.reuters.com/legal/government/debt-
transformed-my-life-lawyers-weigh-student-loan-reprieve-2021-08-10/.
10
A 2020 American Bar Association survey of law school graduates revealed that
over 95% of students took out a loan to finance their J.D., and the average law school
graduate had approximately $165,000 in total student loans. Am. Bar Ass’n, 2020 Law
School Student Loan Debt: Survey Report 7 (2020),
https://www.americanbar.org/content/dam/aba/administrative/young_lawyers/2020-
student-loan-survey.pdf.
20
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association into a mandatory news mouthpiece. If a mandatory bar associa-
tion can say or promote anything “of concern to lawyers,” it is difficult to see
any limit to what the LSBA could say or promote. That is to say: The ger-
maneness test is not satisfied just because a particular personal matter might
impact a person who is practicing law.
Instead, speech must be reasonably related to the regulation or im-
provement of legal practice. That generally means that speech engaging
with, promoting, or encouraging participation in wider public policy and
social controversies is rarely, if ever, germane. A tweet apprising lawyers of
the difficulty of student loans and possible student-loan reform fails that
standard.
v.
Finally, at oral argument, Boudreaux directed our attention to several
documents published or promoted by the LSBA before and during June,
which the federal government recognizes as “Pride Month.”11 We take judi-
cial notice12 of one of them: a link to a History.com article about gay rights,
along with a large rainbow flag icon that read “LGBT Pride Month.”13
_____________________
11
Proclamation No. 10590, 88 Fed. Reg. 36447 (May 31, 2023).
12
Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (per curiam) (explaining
that a Fifth Circuit panel can “tak[e] judicial notice of the state agency’s own website”);
Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (noting that courts may take judicial
notice of matters of public record when ruling on a Federal Rule of Civil Procedure 12(b)(6)
motion); Dusterhoft v. City of Austin, 2023 WL 6785842, at *2 n.6 (5th Cir. Oct. 13, 2023)
(per curiam) (unpublished) (judicial notice of city’s organizational chart) (citing Funk,
631 F.3d at 783). The LSBA does not dispute the existence of the Pride flag icon and link,
but only their legal relevance.
13
Boudreaux himself openly identifies as a gay man and claims that he does not
disagree with the bar’s messaging, but only that he is compelled to participate in it by dint
of his forced membership.
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Obviously, affirmative action programs and many LGBT causes are
fraught with controversy. As we discussed in McDonald, what some consider
to be inclusive language, attitudes, or hiring practices, others view as divisive
or objectionable. McDonald, 4 F.4th at 249. Indeed, the Supreme Court just
made clear that racial affirmative action—done in the name of “diversity”—
was itself race-based discrimination and unconstitutional. Students for Fair
Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 230–31
(2023). And many Americans still object to certain LGBT causes “based on
decent and honorable religious or philosophical premises.” Obergefell v.
Hodges, 576 U.S. 644, 672 (2015).
The Keller/McDonald test is not whether speech is objectionable, but
whether it is germane. McDonald, 4 F.4th at 249. Speech germane to the
regulation and improvement of legal services might be “highly objectionable,
but it is unconstitutional only if it is unreasonably unrelated to the goals iden-
tified by Keller and McDonald. Id.
Thus, in McDonald, we held that the Texas Bar could engage in
initiatives that sought to diversify the legal profession “for minority, women,
and LGBT attorneys.” Id. We stated that, “[d]espite the controversial and
ideological nature of those diversity initiatives, they are germane to the pur-
poses identified by Keller.” Id. That was because the programs were tied to
the diversity of lawyers, which in turn was tied to the quality of legal services.
Id. at 249–50. Subjects such as health and abortion are personal matters,
whereas diversity in an office has a more direct effect on workplace inter-
actions, which are not so private.
The LSBA’s pride flag icon, with its associated link, lacks the neces-
sary hallmarks of germaneness. For starters, it is a general statement about
“LGBT Pride Month” that offers neither advice nor opportunities, and it is
not made specific to lawyers. Moreover, the article it links is a generic history
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of gay rights in the United States, tinged with various normative claims about
society.14 Neither the article, the LSBA’s icon promoting the article, nor the
surrounding context draws a link between the interests of “LGBT causes”
in society writ large and the improvement of legal practice in the state.
The LSBA tries to minimize the pride flag, saying that Pride Month is
nationally recognized and related to diversity in the profession. But again,
there is a difference between diversity in the profession and diversity in
broader society, with which LSBA lawyers may be concerned. One is ger-
mane, the other not.
We addressed the same issue concerning the article on student loan
debt. Just because lawyers are interested in a general social issue does not
give a mandatory bar association blanket permission to promote content or
speak about it. So too, the LSBA can promote inclusion of LGBT individuals
in the legal profession—we held that Texas could do that, even if was contro-
versial. Id. at 249–50. But the LSBA may not promote LGBT causes gen-
erally, with no connection to the legal profession.
* * * * *
In sum, the majority of speech Boudreaux objects to is germane.
Speech can be germane even if it is “controversial and ideological.” Id.
at 249. But the LSBA crossed the line when it promoted purely informational
articles absent any tailoring to the legal profession. That includes the LSBA’s
tweet about student-loan reform and its promotion of the History.com article
through a pride flag icon. Advancing generic political and social messages in
those ways violates the First Amendment rights of the LSBA’s dissenting
_____________________
14
See Pride Month 2023, Hist. (May 8, 2023),
https://www.history.com/topics/gay-rights/pride-month.
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members.
3.
The LSBA responds that even if some of its speech was non-germane,
it was de minimis and therefore lawful under McDonald. The district court
agreed, finding that bar association speech does not create a First Amend-
ment problem unless it is a “major activity.”
But we decline to recognize a de minimis exception to the rule from
Keller and McDonald for two reasons. First, our caselaw does not support it.
Keller and McDonald categorically state that bar associations cannot engage
in non-germane speech. See McDonald, 4 F.4th at 237; cf. Keller, 496 U.S.
at 14. Although the plurality opinion in Lathrop ruled for the bar association
in part because its challenged legislative activity was not “major,” 367 U.S.
at 839, neither Keller nor McDonald picked up on that stray adjective.15
Instead, Keller’s and McDonald’s holdings center on the germaneness vel non
of the bar association’s speech. See McDonald, 4 F.4th at 237; cf. Keller,
496 U.S. at 14.
The LSBA points out that, even in Keller and McDonald, the bar asso-
ciations openly engaged in major political advocacy. Yet, just because those
decisions addressed major political speech by the respective bar associations
does not mean their holdings are limited to cases where the bar’s speech is
“major.” Indeed, in McDonald we held that “some of the [state bar’s] legis-
lative program [was] non-germane, so compelling the plaintiffs to join an
_____________________
15
McDonald does acknowledge that there was some question in Lathrop about
whether all of the bar association’s advocacy was germane. See McDonald, 4 F.4th at 248
n.23 (citing Lathrop, 367 U.S. at 836–37). But Lathrop’s ultimate rule, according to McDon-
ald, is that “lawyers may constitutionally be mandated to join a bar association that solely
regulates the legal profession and improves the quality of legal services.” Id. at 244
(emphasis added).
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association engaging in it violates their freedom of association.” Id. at 249
(emphasis added). The same is true in this case.
Second, a de minimis standard is unworkable in the context of free
speech. It would put judges in the position of deciding whether speech is
objectionable enough to raise First Amendment problems.
The LSBA suggests that its speech is de minimis not because it is in-
offensive, but because it is an insignificant proportion of the bar’s overall
speech (one tweet and one website posting over a multi-year period). Yet
that rule is equally unwieldy. Judges would still have to decide the subjective
point at which there is enough non-germane speech for the Constitution to
kick in. Worse, it would give bar associations ominous freedom to charac-
terize highly objectionable speech as “de minimis.” Imagine, for example,
that a bar association sends 1,000 anodyne tweets in a year but uses one tweet
to support the repeal of all antidiscrimination laws. There is no doubt that
some members would oppose their funds’ being used for such a message,
even if it was 0.1% of the organization’s overall speech. Even minor amounts
of speech—if forced on an unwilling speaker—are repugnant to the
Constitution.
The LSBA protests that if every single tweet and email must be strictly
“germane,” then mandatory bar associations could not exist. The risk would
be too great of making some statement that a court found insufficiently linked
to the bar association’s purposes. But that doomsday theory is unpersuasive.
In effect, the LSBA asks us to say that even though the Constitution prohibits
non-germane speech by mandatory bar associations, we should allow a little
bit of non-germane speech because the wholesale eradication of mandatory
bars is undesirable. Not so. McDonald lays down the constitutional rule, and
bar associations must adapt accordingly. It is not an impossible burden for
bar associations to speak only on topics germane to their purposes.
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Eschewing a de minimis exception, we conclude that the LSBA was
engaged in non-germane speech. “Compelled membership in a bar associ-
ation that engages in non-germane activities . . . fails exacting scrutiny.”
McDonald, 4 F.4th at 246. “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 all licensed attorneys engage as a group in other, non-germane active-
ities.” Id. The LSBA’s mandatory membership and dues are therefore
unconstitutional.
C.
Boudreaux also alleges that the LSBA’s notice and opt-out mechan-
isms (i.e., its Hudson procedures) are insufficient. Hudson procedures are a
“constitutional prerequisite to a state bar’s collection of mandatory dues.”
Boudreaux I, 3 F.4th at 758. They are prophylactic “safeguards” designed to
prevent the spread of non-germane activities. Id. at 759. At a minimum, a
bar association must give members (1) adequate notice of the bar associa-
tion’s speech and activities, (2) a reasonably prompt opportunity to challenge
the speech before an impartial decisionmaker, and (3) escrow for the amount
reasonably in dispute while such challenges are pending. See Hudson,
475 U.S. at 310; McDonald, 4 F.4th at 253–54.
No one disputes that the second and third requirements of Hudson are
met here. Members of the LSBA may object to a speech activity at any time,
which causes the LSBA to put a pro rata share of that member’s bar fee in
escrow. And every timely objector has thus far received a refund. Instead,
Boudreaux complains that he has inadequate notice of the bar’s speech activ-
ities, the first and fundamental requirement of Hudson.
For starters, Boudreaux takes issue with the LSBA’s proposed budget.
He claims that he is unable to “identify” illicit “expenditures that . . . the
26
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[LSBA] has improperly classified as germane.” Boudreaux I, 3 F.4th at 760
(quotation omitted). He analogizes it to inquiry notice, because individual
attorneys are responsible for investigating the bar’s activities, noting object-
tionable speech, and protesting appropriately. He says that is what we found
inadequate in McDonald. See 4 F.4th at 254.
But this case is readily distinguishable from McDonald. On the front
end, the Texas Bar only gave members notice of how their money was being
spent by publishing a generic budget with “itemize[d] expenditures” and
giving members an opportunity to object at the budget meetings. Id. at 253.
And on the back end, the Texas Bar gave “precious few worth-while
options” to an attorney “to express his or her disapproval” of objectionable
speech, as complaints could be “summarily overruled” in the “sole discre-
tion of the Bar’s Executive Director.” Id. at 254.
On the first front, there are differences between the LSBA’s budget
and the Texas Bar’s budget in McDonald. The LSBA also publishes an item-
ized prospective budget and gives members budget-level input. Yet based on
its post-McDonald reforms, no expenditures in the budget are set aside for
non-germane activities. Indeed, the LSBA cites McDonald on the cover sheet
of its 2022–2023 budget to contextualize all its listed expenses. The LSBA
also provides members with audited reports at the end of the year explaining
how mandatory dues and other revenue were spent.
Admittedly, the LSBA’s budget has mostly generic descriptions of
expenditures. Things like “Lobbying” are listed under the heading “Gov-
ernmental Relations” without any additional explanation (although, notably,
the post-McDonald proposed budget cuts the governmental relations line
items down to $0 in all categories). But in Hudson, the Court said that a union
“need not provide nonmembers with an exhaustive and detailed list of all its
expenditures,” suggesting that “adequate disclosure” would “include the
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major categories of expenses, as well as verification by an independent
auditor.” 475 U.S. at 307 n.18. A union was permitted to have a line item
such as “payment [to] its affiliated state and national labor organizations,”
so long as there was a “showing that none of it was used to subsidize activities
for which nonmembers may not be charged.” Id. And here, the LSBA’s
generic budget categories are coupled with a disclaimer in the budget and the
assurances in its bylaws that its speech activity will abide by McDonald’s
germaneness rule.
Indeed, although Hudson applies with full force in the bar association
context, Boudreaux I, 3 F.4th at 759, a prospective budget can only provide so
much notice when a bar association can and must classify all of its speech
activities as germane. Recall that Hudson was contrived after Abood, when
unions were allowed to charge non-members for collective bargaining fees
but not non-germane activity. Hudson, 475 U.S. at 294. Therefore, unions
needed to differentiate between “chargeable” and “nonchargeable” ex-
penses up front and explain the difference to non-members. See McDonald,
4 F.4th at 253–54. McDonald similarly prohibits mandatory bar associations
from engaging in non-germane speech, but it does not create two classes of
payers (members and non-members) and two classes of fees (chargeable and
not). No member’s dues can be used for non-germane activities without vio-
lating the First Amendment. See id. at 246.
And when it comes to non-legislative activities, a bar association can-
not realistically predict in its budget what it will tweet or email about over the
course of a year. It can promise to abide by McDonald, but the threat is back-
end failures to comply with its own rules. In such cases, Hudson and McDon-
ald require that bar associations give adequate notice of ongoing and devel-
oping speech activities. See Boudreaux I, 3 F.4th at 759.
On that front, the difference between McDonald and the instant case
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is even more stark. In McDonald, the Bar failed to notify members of ongoing
speech, and members had “precious few worth-while options to express his
or her disapproval” to specific speech after the fact. McDonald, 4 F.4th
at 254. But here, the LSBA gives members a summary of its legislative posi-
tions in emailed “Bar Briefs,” updates members about its other activity
through emails and the Bar Journal, and regularly updates members about its
activities through social media. Indeed, all of the speech Boudreaux objects
to was in widely disseminated communications or website postings. After
extensive discovery, Boudreaux did not identify a single example of speech
that he would have objected to but did not because of insufficient notice.
What is more, both parties agree that the opt-out procedures here are mean-
ingful, not illusory. Boudreaux merely chose not to use them.
Taking all of the LSBA’s notice mechanisms together—its budget, its
compliant bylaws, and its extensive public communications about its
activities—a reasonable member of the LSBA would know about the speech
activities of the bar. And the LSBA gives members a meaningful opportunity
to object before an impartial decisionmaker and get a refund of their contri-
bution to the objectionable speech. That satisfies Hudson and McDonald. To
the extent Boudreaux is harmed in this case, it is not from a lack of notice. It
is from the LSBA’s decision to promote non-germane speech in the first
place.16
III.
If a bar association is going to force individuals to associate with and
_____________________
16
Although the LSBA’s notice and objection procedures are constitutionally ade-
quate, Boudreaux’s decision not to use those procedures does not prevent him from bring-
ing a § 1983 claim in federal court based on the violation of his First Amendment rights.
Section 1983 includes no requirement that plaintiffs first exhaust state law remedies. See
Pakdel v. City and Cnty. of San Francisco, 141 S. Ct. 2226, 2230 (2021).
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pay for speech, that speech must be germane. Although judging germaneness
is difficult, see Janus, 138 S. Ct. at 2481–82, we are bound to police the line
that Keller and McDonald laid down. We have noted several instances of non-
germane speech by the LSBA, including, inter alia, its promotion of the
article about student loan policy and its icon and link celebrating Pride
Month. Because the LSBA engages in non-germane speech, its mandatory
membership policy violates Boudreaux’s rights to free speech and free asso-
ciation. Additionally, Boudreaux is entitled to a limited preliminary injunc-
tion for the same reasons as were the plaintiffs in McDonald.17
We therefore AFFIRM the judgment in part and REVERSE in part.
We REMAND to the district court for a determination of the proper remedy
and for proceedings not inconsistent with this opinion, although we take no
position on the proper injunctive or declaratory relief. We also RENDER a
preliminary injunction preventing the LSBA from requiring Boudreaux to
join or pay dues to the LSBA pending completion of the remedies phase.
_____________________
17
Just like the McDonald plaintiffs, Boudreaux has succeeded on the merits and has
suffered irreparable constitutional injury. See McDonald, 4 F.4th at 255. An injunction
protecting his First Amendment rights is also in the public interest and supported by the
balance of the equities. Id.
30