Amicus Brief: Saadeh v. New Jersey State Bar Association

Rajeh Saadeh is a New Jersey attorney and longtime member of the New Jersey State Bar Association. The bar association sets aside seats on its board for specific demographics: African American, Hispanic, Asian Pacific American, women, and LGBTQ+. Saadeh, who is a Muslim and Palestinian, sued the bar association for discrimination in how it selects board members.

Although Saadeh won at the trial court, the appellate court reversed, holding that the bar association’s discrimination is protected by the First Amendment right of expressive association. In other words, the demographic makeup of the board was a type of free speech that expressed the bar association's values of "diversity" and "inclusivity."

Saadeh now seeks Supreme Court review, and the Manhattan Institute has filed an amicus brief in support. We argue that the decision below misapplies settled First Amendment doctrine. There is a right to expressive association, but it is limited. Discriminating in allocating board positions is conduct, not speech. Under the lower court's theory, all discrimination could be seen as expressive association, even discrimination by white supremacists to reflect their "values." Those arguments were tried in the wake of the Civil Rights Act of 1964; they failed then as they should fail now. The Supreme Court should review Saadeh's case and overrule the dangerous decision of the lower court.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

Special thanks to MI law school associate Maya El-Sharif.

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