LegalServCorp_v_VelazquezSyllabus.txt

SUPREME COURT OF THE UNITED STATES
Syllabus
LEGAL SERVICES CORPORATION v. VELAZQUEZ ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 99-603. Argued October 4, 2000- Decided February 28,
2001*
The Legal Services Corporation Act authorizes petitioner Legal
Services Corporation (LSC) to distribute funds appropriated by
Congress to local grantee organizations providing free legal
assistance to indigent clients in, inter alia, welfare benefits
claims. In every annual appropriations Act since 1996, Congress has
prohibited LSC funding of any organization that represented clients
in an effort to amend or otherwise challenge existing welfare law.
Grantees cannot continue representation in a welfare matter even
where a constitutional or statutory validity challenge becomes
apparent after representation is well under way. Respondents-
lawyers employed by LSC grantees, together with others- filed suit
to declare, inter alia, the restriction invalid. The District Court
denied them a preliminary injunction, but the Second Circuit
invalidated the restriction, finding it impermissible viewpoint
discrimination that violated the First Amendment.
Held: The funding restriction violates the First Amendment. Pp.
5-15.
(a) LSC and the Government, also a petitioner, claim that Rust
v. Sullivan, 500 U. S. 173, in which this Court upheld a
restriction prohibiting doctors employed by federally funded family
planning clinics from discussing abortion with their patients,
supports the restriction here. However, the Court has since
explained that the Rust counseling activities amounted to
governmental speech, sustaining view
------
* Together with No. 99-960, United States v. Velazquez et al.,
also on certiorari to the same court.
LEGAL SERVICES CORPORATION v. VELAZQUEZ
Syllabus
point-based funding decisions 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, or instances,
like Rust, in which the government uses private speakers to
transmit information pertaining to its own program, Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U. S. 819, 833. Although
the government has the latitude to ensure that its own message is
being delivered, neither that latitude nor its rationale applies to
subsidies for private speech in every instance. Like the
Rosenberger program, the LSC program was designed to facilitate
private speech, not to promote a governmental message. An LSC
attorney speaks on behalf of a private, indigent client in a
welfare benefits claim, while the Government's message is delivered
by the attorney defending the benefits decision. The attorney's
advice to the client and advocacy to the courts cannot be
classified as governmental speech even under a generous
understanding of that concept. In this vital respect this suit is
distinguishable from Rust. Pp. 5-8.
(b) The private nature of the instant speech, and the extent of
LSC's regulation of private expression, are indicated further by
the circumstance that the Government seeks to control an existing
medium of expression in ways which distort its usual functioning.
Cases involving a limited forum, though not controlling, provide
instruction for evaluating restrictions in governmental subsidies.
Here the program presumes that private, nongovernmental speech is
necessary, and a substantial restriction is placed upon that
speech. By providing subsidies to LSC, the Government seeks to
facilitate suits for benefits by using the State and Federal
Judiciaries and the independent bar on which they 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 attorneys' traditional role in much the same
way broadcast systems or student publication networks were changed
in the limited forum cases of Arkansas Ed. Television Comm'n v.
Forbes, 523 U. S. 666, and Rosenberger v. Rector and Visitors of
Univ. of Va., supra. The Government may not design a subsidy to
effect such a serious and fundamental restriction on the advocacy
of attorneys and the functioning of the judiciary. An informed,
independent judiciary presumes an informed, independent bar.
However, the instant restriction prevents LSC attorneys from
advising the courts of serious statutory validity questions. It
also threatens severe impairment of the judicial function by
sifting out cases presenting constitutional challenges in order to
insulate the Government's laws from judicial inquiry. The result of
this restriction would be two tiers of cases. There would be
lingering doubt
Cite as: 531 U. S. ____ (2001)
Syllabus
whether an LSC attorney's truncated representation had resulted
in complete analysis of the case, full advice to the client, and
proper presentation to the court; and the courts and the public
would come to question the adequacy and fairness of professional
representations when the attorney avoided all reference to
statutory validity and constitutional authority questions. A scheme
so inconsistent with accepted separation-of-powers principles is an
insufficient basis to sustain or uphold the restriction on speech.
Pp. 8-12.


(c)
That LSC attorneys can withdraw does not make the
restrictionharmless, for the statute is an attempt to draw lines
around the LSC program to exclude from litigation arguments and
theories Congress finds unacceptable but which by their nature are
within the courts' province to consider. The restriction is even
more problematic because in cases where the attorney withdraws, the
indigent client is unlikely to find other counsel. There may be no
alternative source of vital information on the client's
constitutional or statutory rights, in stark contrast to Rust,
where a patient could receive both governmentally subsidized
counseling and consultation with independent or affiliate
organizations. Finally, notwithstanding Congress' purpose to
confine and limit its program, the restriction insulates current
welfare laws from constitutional scrutiny and certain other legal
challenges, a condition implicating central First Amendment
concerns. There can be little doubt that the LSC Act funds
constitutionally protected expression; and 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. Pp. 12-14.


(d)
The Court of Appeals concluded that the funding
restriction could be severed from the statute, leaving the
remaining portions operative. Because that determination was not
contested here, the Court in the exercise of its discretion and
prudential judgment declines to address it. Pp. 14-15.


164 F. 3d 757, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J.,
filed a dissenting opinion in which REHNQUIST, C. J., and O'CONNOR
and THOMAS, JJ., joined.