Brief Fact Summary. Legal Services Corporation (LSC) (D) distributes funds allocated to welfare by Congress to local organizations which receive grants and provide free legal assistance to poor clients. Congress passed an order preventing LSC from funding any grantee which helped clients to challenge or try to get amendments to the current welfare laws. This restriction was challenged by LSC grantees as being in violation of the First Amendment.
Synopsis of Rule of Law. A LSC program cannot be restricted so as to refuse federal funding via the LSC to any organization which helps with legal representation of poor clients in their attempts to bring about amendment or otherwise challenge the existing welfare laws, without such restriction violating the First Amendment.
Issue. Does a LSC program condition that prevents provision of federal LSC funding from being made for any organization representing poor clients who are attempting to challenge the existing welfare laws in any way violate the First Amendment?
Held. (Kennedy, J.) Yes. A restriction on an LSC program which bars federal funds from being distributed via the LSC to any organization that provides representation for poor clients who attempt to get the welfare law amended or in any other way challenge them is in violation of the First Amendment. LSC cited Rust v. Sullivan, 500 U.S.173 (1991), as precedent which supported the present restriction. In that case, doctors who were employees of family planning clinics run on federal funds were prevented from talking about abortion with their patients. This decision was later explained that the doctors’ speech in the Rust was treated as government speech. In all cases where speech is of the government or by private speakers employed by the government to communicate its own programs or policies, funding decisions based on viewpoints will be held to be valid. The government has freedom to ensure delivery of its own message but not the freedom to decide the content of subsidized private speech in all cases. In this case, the function of the LSC was to enable private speech and not to advance propagation of a governmental program. The LSC lawyers are representing private clients (who happen to be too poor to afford their own legal help) who have claims regarding welfare benefits, and not a governmental client. The government is speaking here through the attorney for the defense. The LSC lawyer’s offer advice to their clients and speak for his rights in a way which cannot be misunderstood as speaking on behalf of the government in even the broadest sense. This is the essential difference between the present case and Rust. One further indication that shows the LSC grantees are speaking privately, and which shows also how much control is attempted to be exerted on private speech, is the fact that the government is trying to restrict a means of speech which is already functioning by a method which drastically alters its function. This may be evaluated by considering cases in a limited forum, limited as to the class of speaker or the content of speech. In this case, the subsidies given by government are to help welfare claimants use state and federal courts as well as independent lawyers who are necessary to fulfill the responsibilities to sue for their benefits. However, this system is drastically altered when LSC lawyers are required not to advise their clients in a particular way or not to present particular arguments before the court. This cannot be linked with the subsidy without limiting the role of advocacy and judicial functioning in a substantial and basic manner. If the judges are to act in an independent and knowledgeable manner, the attorneys must also be of this stature. This cannot be under this restriction, whereby the LSC lawyers are prevented from bringing issues which raise validity questions on certain statutes, and also severely damages the judicial system by forcing all challenges to the constitution to be automatically removed from the system .This results in an artificial shielding of the government’s laws from judicial scrutiny. It will also create two kinds of cases, and leave doubt behind as to whether the LSC lawyer fully presented his case, gave complete legal advice and whether he apprised the court of all the facts and challenges. This would remove public confidence in the system, since the attorney’s presentations could hardly be trusted to be professional and fair when he was barred from raising all questions relating to the validity of certain statutes in question or the authority of a certain measure under the constitution. This restriction does not comply with the separation-of-powers principle which is foundational to the political life of the U.S. and therefore is an unfair limitation of the freedom of speech. The provision for LSC attorneys to withdraw representation does not provide a way out. The error the statute falls into is in the attempt to separate the LSC program from all legal arguments or suits which are not congenial to Congress but deserve representation in court. Withdrawal of an LSC lawyer may often mean that the indigent client is deprived of professional representation altogether. Thus he may have no access to the information he so desperately needs as to his rights under the constitution or under relevant statutes. This is again a marked difference from the situation in Rust which offered alternatives to federal clinics in the form of other counseling facilities sponsored by the government or independent or associated organizations. The final flaw in the restriction lies in that it tries to provide a protective barrier between the government and the judicial system regarding the former’s interpretation of the constitution, which is in itself unconstitutional. Those who bring suit in court cannot be separated from their professional advisors in this way. Private speech cannot be suppressed even if hostile to government interests and even if the government itself has funded it through Congress. The decision is affirmed .
Dissent. (Scalia, J.) The distinction made by the majority of the court between Rust and the present case, that is, that the program in Rust was meant to fund government speech while LSC funding is for private speech is not convincing. The doctors in the former case certainly had the professional duty to provide the best advice for their clients, and their advice tendered in conditions of confidentiality could not be mistaken for government speech. In this case too, the lawyers have the duty to provide complete legal advice in the interest of their clients. Secondly, the majority view that Rust is different since this case involves the government’s attempt to restrict a means of expression already in use, and to use it in a way which alters its operation, but this opinion is wrong both in law and in the facts. The law does not support the view of the majority that the First Amendment protection of the right to speech has anything to do with receiving funds from the government which come with the condition of accepting limitation or even distortion of the existing means of expression. The only valid distinction between this case and Rust is that the patients in that case who wished to receive advice on abortion, which was forbidden at the federally funded clinics, could receive other services (not linked with abortion) from these clinics, whereas some LSC clients may lose all chance for legal representation if they want to press a claim against welfare. This is not linked with the First Amendment question, however. The real issue under the First Amendment is whether the funding restriction has the effect of exerting forceful suppression of speech on those who disagree with the legal position specified in the program. The LSC restriction does not prevent free speech nor force anyone to change his message, so that it has no relevant precedent in Rust.
Discussion. In this case the difficulty of arriving at a clear-cut agreement on cases raising the issue of conditions which violate the constitution is highlighted, as seen by the dissent over whether the two cases are the same in material particulars. Since this area sees a variety of legal opinion which is extremely difficult to bring into harmony, some have suggested that they are in fact irreconcilable, the decision being based on whether the Court thinks a particular condition worth upholding or not, and not on any general principle.