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Case 2:19-cv-11962-LMA-JVM Document 106 Filed 08/08/22 Page 28 of 33

opt-out from financing such activities. However, pursuant to McDonald’s freedom of

association holding, bar associations can no longer engage in non-germane activities.

Id. at 252. Under this holding, the First Amendment violation caused by the Bar’s

non-germane speech cannot be cured through opt-out procedures. See Id. at 247.

While Hudson clearly continues to be relevant insofar as it requires the

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provision of some degree of notice with respect to the Bar’s activities, several of the

more specific features of Hudson are difficult to reconcile with McDonald’s freedom

of association holding. For instance, Hudson, as applied in McDonald, requires bar

associations to provide members with a budgeting breakdown between germane and

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non-germane activities. Id. at 254. However, any bar association that complies with
McDonald’s freedom of association holding will necessarily classify all of its activities

as germane. Indeed, when considering a challenge to the Oregon State Bar

Association, the Ninth Circuit observed, “[the Oregon Bar] maintains a policy

mandating that dues be used for germane activities . . . . As a practical matter, then,

advance [Hudson] notice would not have offered additional protection against the

84 The Fifth Circuit has explained that the adequacy of the Bar’s procedures continues
to be relevant “[e]ven if the plaintiffs cannot be compelled to join the Bar because that
violates their freedom of association.” Pursuant to “Boudreaux v. Louisiana State Bar
Association, the inability to identify non-germane expenses is itself a constitutional
injury, entitling the plaintiffs to relief. Moreover, because the plaintiffs can be
compelled to join the Bar if it ceases its non-germane activities, per Lathrop, ensuring
the Bar has adequate procedures to notify the plaintiffs, and others, that some
activities might be non-germane is important.” McDonald, 4 F.4th at 253 n.41.
85 The court used the terms “chargeable” and “non-chargeable activities,” McDonald,
4 F.4th at 254, which arise from Hudson’s labor union context, and appear to be
equivalent to “germane” and “non-germane,” as those terms are used in the bar
association context.

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