LegalServCorp_v_VelazquezOpinion.txt

SUPREME COURT OF THE UNITED STATES
Nos. 99-603 and 99-960
LEGAL SERVICES CORPORATION, PETITIONER 99-603 v. CARMEN
VELAZQUEZ ET AL.
UNITED STATES, PETITIONER 99-960 v. CARMEN VELAZQUEZ ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
[February 28, 2001]
JUSTICE KENNEDY delivered the opinion of the Court.
In 1974, Congress enacted the Legal Services Corporation Act, 88
Stat. 378, 42 U. S. C. §2996 et seq. The Act establishes the Legal
Services Corporation (LSC) as a District of Columbia nonprofit
corporation. LSC's mission is to distribute funds appropriated by
Congress to eligible local grantee organizations "for the purpose
of providing financial support for legal assistance in noncriminal
proceedings or matters to persons financially unable to afford
legal assistance." §2996b(a).
LSC grantees consist of hundreds of local organizations
governed, in the typical case, by local boards of directors. In
many instances the grantees are funded by a combination of LSC
funds and other public or private sources. The grantee
organizations hire and supervise lawyers to provide free legal
assistance to indigent clients. Each year
2 LEGAL SERVICES CORPORATION v. VELAZQUEZ
LSC appropriates funds to grantees or recipients that hire and
supervise lawyers for various professional activities, including
representation of indigent clients seeking welfare benefits.
This suit requires us to decide whether one of the conditions
imposed by Congress on the use of LSC funds violates the First
Amendment rights of LSC grantees and their clients. For purposes of
our decision, the restriction, to be quoted in further detail,
prohibits legal representation funded by recipients of LSC moneys
if the representation involves an effort to amend or otherwise
challenge existing welfare law. As interpreted by the LSC and by
the Government, the restriction prevents an attorney from arguing
to a court that a state statute conflicts with a federal statute or
that either a state or federal statute by its terms or in its
application is violative of the United States Constitution.
Lawyers employed by New York City LSC grantees, together with
private LSC contributors, LSC indigent clients, and various state
and local public officials whose governments contribute to LSC
grantees, brought suit in the United States District Court for the
Southern District of New York to declare the restriction, among
other provisions of the Act, invalid. The United States Court of
Appeals for the Second Circuit approved an injunction against
enforcement of the provision as an impermissible viewpoint-based
discrimination in violation of the First Amendment, 164 F. 3d 757
(1999). We granted certiorari, and the parties who commenced the
suit in the District Court are here as respondents. The LSC as
petitioner is joined by the Government of the United States, which
had intervened in the District Court. We agree that the restriction
violates the First Amendment, and we affirm the judgment of the
Court of Appeals.
I From the inception of the LSC, Congress has placed
restrictions on its use of funds. For instance, the LSC Act
prohibits recipients from making available LSC funds, program
personnel, or equipment to any political party, to any political
campaign, or for use in "advocating or opposing any ballot
measures." 42 U. S. C. §2996e(d)(4). See §2996e(d)(3). The Act
further proscribes use of funds in most criminal proceedings and in
litigation involving nontherapeutic abortions, secondary school
desegregation, military desertion, or violations of the Selective
Service statute. §§2996f(b)(8)-(10) (1994 ed. and Supp. III). Fund
recipients are barred from bringing class-action suits unless
express approval is obtained from LSC. §2996e(d)(5). The
restrictions at issue were part of a compromise set of restrictions
enacted in the Omnibus Consolidated Rescissions and Appropriations
Act of 1996 (1996 Act), §504, 110 Stat. 1321-53, and continued in
each subsequent annual appropriations Act. The relevant portion of
§504(a)(16) prohibits funding of any organization "that initiates
legal representation or participates in any other way, in
litigation, lobbying, or rulemaking, involving an effort to reform
a Federal or State welfare system, except that this paragraph shall
not be construed to preclude a recipient from representing an
individual eligible client who is seeking specific relief from a
welfare agency if such relief does not involve an effort to amend
or otherwise challenge existing law in effect on the date of the
initiation of the representation."
The prohibitions apply to all of the activities of an LSC
grantee, including those paid for by non-LSC funds. §§504(d)(1) and
(2). We are concerned with the statutory provision which excludes
LSC representation in cases
LEGAL SERVICES CORPORATION v. VELAZQUEZ
Opinion of the Court
which "involve an effort to amend or otherwise challenge
existing law in effect on the date of the initiation of the
representation."
In 1997, LSC adopted final regulations clarifying §504(a)(16).
45 CFR pt. 1639 (1999). LSC interpreted the statutory provision to
allow indigent clients to challenge welfare agency determinations
of benefit ineligibility under interpretations of existing law. For
example, an LSC grantee could represent a welfare claimant who
argued that an agency made an erroneous factual determination or
that an agency misread or misapplied a term contained in an
existing welfare statute. According to LSC, a grantee in that
position could argue as well that an agency policy violated
existing law. §1639.4. Under LSC's interpretation, however,
grantees could not accept representations designed to change
welfare laws, much less argue against the constitutionality or
statutory validity of those laws. Brief for Petitioner in No.
99-603, p. 7. Even in cases where constitutional or statutory
challenges became apparent after representation was well under way,
LSC advised that its attorneys must withdraw. Ibid.
After the instant suit was filed in the District Court alleging
the restrictions on the use of LSC funds violated the First
Amendment, see 985 F. Supp. 323 (1997), the court denied a
preliminary injunction, finding no probability of success on the
merits. Id., at 344.
On appeal, the Court of Appeals for the Second Circuit affirmed
in part and reversed in part. 164 F. 3d 757 (1999). As relevant for
our purposes, the court addressed respondents' challenges to the
restrictions in §504(a)(16). It concluded the section specified
four categories of prohibited activities, of which "three
appear[ed] to prohibit the type of activity named regardless of
viewpoint, while one might be read to prohibit the activity only
when it seeks reform." Id., at 768. The court upheld the
restrictions on litigation, lobbying, and rulemaking "involving an
effort to reform a Federal or State welfare system," since all
three prohibited grantees' involvement in these activities
regardless of the side of the issue. Id., at 768-769.
The court next considered the exception to §504(a)(16) that
allows representation of "'an individual eligible client who is
seeking specific relief from a welfare agency.'" The court
invalidated, as impermissible viewpoint discrimination, the
qualification that representation could "not involve an effort to
amend or otherwise challenge existing law," because it "clearly
seeks to discourage challenges to the status quo." Id., at
769-770.
Left to decide what part of the 1996 Act to strike as invalid,
the court concluded that congressional intent regarding
severability was unclear. It decided to "invalidate the smallest
possible portion of the statute, excising only the viewpoint-based
proviso rather than the entire exception of which it is a part."
Id., at 773.
Dissenting in part, Judge Jacobs agreed with the majority except
for its holding that the proviso banning challenges to existing
welfare laws effected impermissible viewpoint-based discrimination.
The provision, in his view, was permissible because it merely
defined the scope of services to be funded. Id., at 773-778
(opinion concurring in part and dissenting in part).
LSC filed a petition for certiorari challenging the Court of
Appeals' conclusion that the §504(a)(16) suits-for-benefits proviso
was unconstitutional. We granted certiorari, 529 U. S. 1052
(2000).
II The United States and LSC rely on Rust v. Sullivan, 500
U. S. 173 (1991), as support for the LSC program restrictions.
In Rust, Congress established program clinics to provide subsidies
for doctors to advise patients on a variety of family planning
topics. Congress did not consider abortion to be within its family
planning objectives, how
6 LEGAL SERVICES CORPORATION v. VELAZQUEZ
ever, and it forbade doctors employed by the program from
discussing abortion with their patients. Id., at 179-180.
Recipients of funds under Title X of the Public Health Service Act,
§§1002, 1008, as added, 84 Stat. 1506, 42
U. S. C. §§1508, 300a, 300a-6, challenged the Act's restriction
that provided that none of the Title X funds appropriated for
family planning services could "be used in programs where abortion
is a method of family planning." §300a-6. The recipients argued
that the regulations constituted impermissible viewpoint
discrimination favoring an antiabortion position over a proabortion
approach in the sphere of family planning. 500 U. S., at 192. They
asserted as well that Congress had imposed an unconstitutional
condition on recipients of federal funds by requiring them to
relinquish their right to engage in abortion advocacy and
counseling in exchange for the subsidy. Id., at 196.
We upheld the law, reasoning that Congress had not discriminated
against viewpoints on abortion, but had "merely chosen to fund one
activity to the exclusion of the other." Id., at 193. The
restrictions were considered necessary "to ensure that the limits
of the federal program [were] observed." Ibid. Title X did not
single out a particular idea for suppression because it was
dangerous or disfavored; rather, Congress prohibited Title X
doctors from counseling that was outside the scope of the project.
Id., at 194-195.
The Court in Rust did not place explicit reliance on the
rationale that the counseling activities of the doctors under Title
X amounted to governmental speech; when interpreting the holding in
later cases, however, we have explained Rust on this understanding.
We have said that viewpoint-based funding decisions can be
sustained in instances in which the government is itself the
speaker, see Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217, 229, 235 (2000), or instances, like
Rust, in
Opinion of the Court
which the government "used private speakers to transmit
information pertaining to its own program." Rosenberger
v. Rector & Visitors of Univ. of Va., 515 U. S. 819, 833
(1995). As we said in Rosenberger, "[w]hen the government disburses
public funds to private entities to convey a governmental message,
it may take legitimate and appropriate steps to ensure that its
message is neither garbled nor distorted by the grantee." Ibid. The
latitude which may exist for restrictions on speech where the
govern-ment's own message is being delivered flows in part from our
observation that, "[w]hen the government speaks, for instance to
promote its own policies or to advance a particular idea, it is, in
the end, accountable to the electorate and the political process
for its advocacy. If the citizenry objects, newly elected officials
later could espouse some different or contrary position." Board of
Regents of Univ. of Wis. System v. Southworth, supra, at 235.
Neither the latitude for government speech nor its rationale
applies to subsidies for private speech in every instance, however.
As we have pointed out, "[i]t does not follow . . . that
viewpoint-based restrictions are proper when the [government] does
not itself speak or subsidize transmittal of a message it favors
but instead expends funds to encourage a diversity of views from
private speakers." Rosenberger, supra, at 834.
Although the LSC program differs from the program at issue in
Rosenberger in that its purpose is not to "encourage a diversity of
views," the salient point is that, like the program in Rosenberger,
the LSC program was designed to facilitate private speech, not to
promote a governmental message. Congress funded LSC grantees to
provide attorneys to represent the interests of indigent clients.
In the specific context of §504(a)(16) suits for benefits, an
LSCfunded attorney speaks on the behalf of the client in a claim
against the government for welfare benefits. The lawyer is not the
government's speaker. The attorney
8 LEGAL SERVICES CORPORATION v. VELAZQUEZ
defending the decision to deny benefits will deliver the
government's message in the litigation. The LSC lawyer, however,
speaks on the behalf of his or her private, indigent client. Cf.
Polk County v. Dodson, 454 U. S. 312, 321-322 (1981) (holding that
a public defender does not act "under color of state law" because
he "works under canons of professional responsibility that mandate
his exercise of independent judgment on behalf of the client" and
because there is an "assumption that counsel will be free of state
control").
The Government has designed this program to use the legal
profession and the established Judiciary of the States and the
Federal Government to accomplish its end of assisting welfare
claimants in determination or receipt of their benefits. The advice
from the attorney to the client and the advocacy by the attorney to
the courts cannot be classified as governmental speech even under a
generous understanding of the concept. In this vital respect this
suit is distinguishable from Rust.
The private nature of the speech involved here, and the extent
of LSC's regulation of private expression, are indicated further by
the circumstance that the Government seeks to use an existing
medium of expression and to control it, in a class of cases, in
ways which distort its usual functioning. Where the government uses
or attempts to regulate a particular medium, we have been informed
by its accepted usage in determining whether a particular
restriction on speech is necessary for the pro-gram's purposes and
limitations. In FCC v. League of Women Voters of Cal., 468 U. S.
364 (1984), the Court was instructed by its understanding of the
dynamics of the broadcast industry in holding that prohibitions
against editorializing by public radio networks were an
impermissible restriction, even though the Government enacted the
restriction to control the use of public funds. The First Amendment
forbade the Government from using the
Opinion of the Court
forum in an unconventional way to suppress speech inherent in
the nature of the medium. See id., at 396-397. In Arkansas Ed.
Television Comm'n v. Forbes, 523 U. S. 666, 676 (1998), the
dynamics of the broadcasting system gave station programmers the
right to use editorial judgment to exclude certain speech so that
the broadcast message could be more effective. And in Rosenberger,
the fact that student newspapers expressed many different points of
view was an important foundation for the Court's decision to
invalidate viewpoint-based restrictions. 515 U. S., at 836.
When the government creates a limited forum for speech, certain
restrictions may be necessary to define the limits and purposes of
the program. Perry Ed. Assn. v. Perry Local Educator's Assn., 460
U. S. 37 (1983); see also Lamb's Chapel v. Center Moriches Union
Free School Dist., 508 U. S. 384 (1993). The same is true when the
government establishes a subsidy for specified ends. Rust v.
Sullivan, 500 U. S. 173 (1991). As this suit involves a subsidy,
limited forum cases such as Perry, Lamb's Chapel and Rosenberger
may not be controlling in a strict sense, yet they do provide some
instruction. Here the program presumes that private,
nongovernmental speech is necessary, and a substantial restriction
is placed upon that speech. At oral argument and in its briefs the
LSC advised us that lawyers funded in the Government program may
not undertake representation in suits for benefits if they must
advise clients respecting the questionable validity of a statute
which defines benefit eligibility and the payment structure. The
limitation forecloses advice or legal assistance to question the
validity of statutes under the Constitution of the United States.
It extends further, it must be noted, so that state statutes
inconsistent with federal law under the Supremacy Clause may be
neither challenged nor questioned.
By providing subsidies to LSC, the Government seeks to
10 LEGAL SERVICES CORPORATION v. VELAZQUEZ
facilitate suits for benefits by using the State and Federal
courts and the independent bar on which those courts depend for the
proper performance of their duties and responsibilities.
Restricting LSC attorneys in advising their clients and in
presenting arguments and analyses to the courts distorts the legal
system by altering the traditional role of the attorneys in much
the same way broadcast systems or student publication networks were
changed in the limited forum cases we have cited. Just as
government in those cases could not elect to use a broadcasting
network or a college publication structure in a regime which
prohibits speech necessary to the proper functioning of those
systems, see Arkansas Ed. Television Comm'n, supra, and
Rosenberger, supra, it may not design a subsidy to effect this
serious and fundamental restriction on advocacy of attorneys and
the functioning of the judiciary.
LSC has advised us, furthermore, that upon determining a
question of statutory validity is present in any anticipated or
pending case or controversy, the LSC-funded attorney must cease the
representation at once. This is true whether the validity issue
becomes apparent during initial attorney-client consultations or in
the midst of litigation proceedings. A disturbing example of the
restriction was discussed during oral argument before the Court. It
is well understood that when there are two reasonable constructions
for a statute, yet one raises a constitutional question, the Court
should prefer the interpretation which avoids the constitutional
issue. Gomez v. United States, 490 U. S. 858, 864 (1989); Ashwander
v. TVA, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring).
Yet, as the LSC advised the Court, if, during litigation, a judge
were to ask an LSC attorney whether there was a constitutional
concern, the LSC attorney simply could not answer. Tr. of Oral Arg.
8-9.
Interpretation of the law and the Constitution is the primary
mission of the judiciary when it acts within the sphere of its
authority to resolve a case or controversy. Marbury v. Madison, 1
Cranch 137, 177 (1803) ("It is emphatically the province and the
duty of the judicial department to say what the law is"). An
informed, independent judiciary presumes an informed, independent
bar. Under §504(a)(16), however, cases would be presented by LSC
attorneys who could not advise the courts of serious questions of
statutory validity. The disability is inconsistent with the
proposition that attorneys should present all the reasonable and
well-grounded arguments necessary for proper resolution of the
case. By seeking to prohibit the analysis of certain legal issues
and to truncate presentation to the courts, the enactment under
review prohibits speech and expression upon which courts must
depend for the proper exercise of the judicial power. Congress
cannot wrest the law from the Constitution which is its source.
"Those then who controvert the principle that the constitution is
to be considered, in court, as a paramount law, are reduced to the
necessity of maintaining that courts must close their eyes on the
constitution, and see only the law." Id., at 178.
The restriction imposed by the statute here threatens severe
impairment of the judicial function. Section 504(a)(16) sifts out
cases presenting constitutional challenges in order to insulate the
Government's laws from judicial inquiry. If the restriction on
speech and legal advice were to stand, the result would be two
tiers of cases. In cases where LSC counsel were attorneys of
record, there would be lingering doubt whether the truncated
representation had resulted in complete analysis of the case, full
advice to the client, and proper presentation to the court. The
courts and the public would come to question the adequacy and
fairness of professional representations when the attorney, either
consciously to comply with this statute or unconsciously to
continue the repre
LEGAL SERVICES CORPORATION v. VELAZQUEZ
Opinion of the Court
sentation despite the statute, avoided all reference to
questions of statutory validity and constitutional authority. A
scheme so inconsistent with accepted separation-of-powers
principles is an insufficient basis to sustain or uphold the
restriction on speech.
It is no answer to say the restriction on speech is harmless
because, under LSC's interpretation of the Act, its attorneys can
withdraw. This misses the point. The statute is an attempt to draw
lines around the LSC program to exclude from litigation those
arguments and theories Congress finds unacceptable but which by
their nature are within the province of the courts to consider.
The restriction on speech is even more problematic because in
cases where the attorney withdraws from a representation, the
client is unlikely to find other counsel. The explicit premise for
providing LSC attorneys is the necessity to make available
representation "to persons financially unable to afford legal
assistance." 42 U. S. C. §2996(a)(3). There often will be no
alternative source for the client to receive vital information
respecting constitutional and statutory rights bearing upon claimed
benefits. Thus, with respect to the litigation services Congress
has funded, there is no alternative channel for expression of the
advocacy Congress seeks to restrict. This is in stark contrast to
Rust. There, a patient could receive the approved Title X family
planning counseling funded by the Government and later could
consult an affiliate or independent organization to receive
abortion counseling. Unlike indigent clients who seek LSC
representation, the patient in Rust was not required to forfeit the
Govern-ment-funded advice when she also received abortion
counseling through alternative channels. Because LSC attorneys must
withdraw whenever a question of a welfare statute's validity
arises, an individual could not obtain joint representation so that
the constitutional challenge would be presented by a non-LSC
attorney, and other, §504(a)(16) is necessary to define the scope
and contours of the federal program, a condition that ensures funds
can be spent for those cases most immediate to congressional
concern. In support of this contention, they suggest the challenged
limitation takes into account the nature of the grantees'
activities and provides limited congressional funds for the
provision of simple suits for benefits. In petitioners' view, the
restriction operates neither to maintain the current welfare system
nor insulate it from attack; rather, it helps the current welfare
system function in a more efficient and fair manner by removing
from the program complex challenges to existing welfare laws.

The effect of the restriction, however, is to prohibit advice or
argumentation that existing welfare laws are unconstitutional or
unlawful. Congress cannot recast a condition on funding as a mere
definition of its program in every case, lest the First Amendment
be reduced to a simple semantic exercise. Here, notwithstanding
Congress' purpose to confine and limit its program, the restriction
operates to insulate current welfare laws from constitutional
scrutiny and certain other legal challenges, a condition
implicating central First Amendment concerns. In no lawsuit funded
by the Government can the LSC attorney, speaking on behalf of a
private client, challenge existing welfare laws. As a result,
arguments by indigent clients that a welfare statute is unlawful or
unconstitutional cannot be expressed in this Government-funded
program for petitioning the courts, even though the program was
created for litigation involving welfare benefits, and even though
the ordinary course of litigation involves the expression of
theories and postulates on both, or multiple, sides of an
issue.
It is fundamental that the First Amendment "was fashioned to
assure unfettered interchange of ideas for the
14 LEGAL SERVICES CORPORATION v. VELAZQUEZ
bringing about of political and social changes desired by the
people." New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964)
(quoting Roth v. United States, 354 U. S. 476, 484 (1957)). There
can be little doubt that the LSC Act funds constitutionally
protected expression; and in the context of this statute there is
no programmatic message of the kind recognized in Rust and which
sufficed there to allow the Government to specify the advice deemed
necessary for its legitimate objectives. This serves to distinguish
§504(a)(16) from any of the Title X program restrictions upheld in
Rust, and to place it beyond any congressional funding condition
approved in the past by this Court.
Congress was not required to fund an LSC attorney to represent
indigent clients; and when it did so, it was not required to fund
the whole range of legal representations or relationships. The LSC
and the United States, however, in effect ask us to permit Congress
to define the scope of the litigation it funds to exclude certain
vital theories and ideas. The attempted restriction is designed to
insulate the Government's interpretation of the Constitution from
judicial challenge. The Constitution does not permit the Government
to confine litigants and their attorneys in this manner. We must be
vigilant when Congress imposes rules and conditions which in effect
insulate its own laws from legitimate judicial challenge. Where
private speech is involved, even Congress' antecedent funding
decision cannot be aimed at the suppression of ideas thought
inimical to the Government's own interest. Regan v. Taxation With
Representation of Wash., 461
U. S. 540, 548 (1983); Speiser v. Randall, 357 U. S. 513, 519
(1958).
For the reasons we have set forth, the funding condition is
invalid. The Court of Appeals considered whether the language
restricting LSC attorneys could be severed from the statute so that
the remaining portions would remain operative. It reached the
reasoned conclusion to invali
Opinion of the Court
date the fragment of §504(a)(16) found contrary to the First
Amendment, leaving the balance of the statute operative and in
place. That determination was not discussed in the briefs of either
party or otherwise contested here, and in the exercise of our
discretion and prudential judgment we decline to address it.
The judgment of the Court of Appeals is
Affirmed.