Legal Services Corporation v. Velazquez – Oral Argument – October 04, 2000

Media for Legal Services Corporation v. Velazquez

Audio Transcription for Opinion Announcement – February 28, 2001 in Legal Services Corporation v. Velazquez

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William H. Rehnquist:

We’ll hear argument next in Number 99-603, Legal Services Corporation v. Velazquez, and United States v. Velazquez.

Mr. Levine.

Alan H. Levine:

Levine, Your Honor.

William H. Rehnquist:

Levine.

Alan H. Levine:

May it please the Court, Mr. Chief Justice–

This is a case concerning Congress’ power to allocate dollars in the federally subsidized Legal Services program for the categories of civil representation that Congress has chosen to furnish.

Under the Rust v. Sullivan line of cases, it is Congress itself that has the power to decide which policies or programs it will promote.

It is not the participants in the program, namely the Legal Services lawyers, the grantees, or even the clients, that have that power.

Here… here, the Government is acting to promote its policy of providing free legal services for certain categories or types of civil representation, and it is the lawyers who are delivering those services.

What Congress did not do was create a Legal Services program to promote diverse private expression by Legal Services lawyers around the country.

In 1996, in response to criticism in Congress that the Legal Services lawyers had veered off course from the program’s original purpose by participating in politicized and expensive litigations, a compromise appropriations bill was enacted to limit the scope of the kinds of civil representations that would be funded.

Specifically, Congress decided not to finance any longer, litigation to amend or otherwise challenge the Federal or State welfare reform system.

Sandra Day O’Connor:

Mr. Levine, does the statute at issue here in your view prohibit a Legal Aid attorney representing an individual client from making a constitutional challenge to the application of a particular welfare law?

Yes.

There seems to be some dispute about whether it does that, but you think that’s clear?

Alan H. Levine:

Yes.

Antonin Scalia:

And if so I presume that it disables him from undertaking representation in that case.

Alan H. Levine:

That’s correct.

Anthony M. Kennedy:

And in fact, I take it, the same prohibition applies if the law or regulation in question is superseded by another Federal statute, or inconsistent with the ADA, et cetera?

Alan H. Levine:

That’s correct.

Antonin Scalia:

What–

Ruth Bader Ginsburg:

–May I ask a question about precisely how that would operate?

Let’s assume we had an attorney who is funded by Legal Services Corporation and is going to make just the argument that under existing law and regulation the client should receive benefits.

That lawyer is joined by another lawyer who is not Legal Services funded, and that lawyer in the same case, without using any Legal Service funds, urges, and beyond that, the existing law, if it works to deny my client benefits, it’s unconstitutional.

In other words, I understand your answer so far, that the Legal Services Corporation lawyer cannot present arguments about existing law.

Can that lawyer, sticking to what Congress says it will pay for, present that part of the lawsuit while another lawyer not funded by Legal Services argues questions of the consistency of the regulation, of the statute, questions of the compatibility of the statute with the Constitution?

Alan H. Levine:

I would say no, Your Honor.

Ruth Bader Ginsburg:

And what is it in the 504(a)(16) that makes it clear that not only can the Legal Services lawyer herself engage in such representation, but cannot team up with a lawyer who is not under that disability?

Alan H. Levine:

Your Honor, your hypothetical would have been that counsel would be cocounsel in one case on behalf of an individual seeking to obtain benefits under existing law and seeking to challenge–

Ruth Bader Ginsburg:

Making arguments lawyers make all the time.

Alan H. Levine:

–In the alternative.

Ruth Bader Ginsburg:

Yes.

Alan H. Levine:

And the position of… I think the statute on its face is clear, that a lawyer could not participate in a case in which there was a challenge to an existing Federal or State welfare reform statute.

The… Congress made a determination that it did not want to participate in funding Legal Services for efforts to challenge existing welfare reform statutes, and in the program integrity guidelines that are set up, that have been established pursuant to the statute to assure the independence of an affiliate organization of a Legal Services program, it is stressed in those regulations that it’s very important that the Legal Services offices funded by Federal Legal Services be separate and distinct from the other, and it seems to me–

Ruth Bader Ginsburg:

Okay, I understand the–

Alan H. Levine:

–and it seems to me that the hypothetical that you’re suggesting where two lawyers essentially are cocounsel for one client, making arguments in the alternative offends that statute–

Ruth Bader Ginsburg:

–Yes, okay, I think you’ve been very clear on that.

You’re saying the Legal Services attorney cannot, in any way, shape, or manner, participate in a lawsuit where anybody makes such a claim.

It’s not just a limitation on use of the funds of Legal Services Corporation, but of the funds… he just can’t participate.

Alan H. Levine:

–That’s correct.

Ruth Bader Ginsburg:

The other thing I would like just to make clear on what is the factual background, or what are the limits of this 504(a)(16).

Could a Legal–

Service funded lawyer make the argument, court, you must read the regulation and statute this way, because if you don’t, the regulation will be under a statutory cloud, or the statute would be under a constitutional crowd… cloud.

In other words, to urge interpretation of the governing statute or regulation to avoid what the Legal Services Corporation lawyer tells the court would be a serious constitutional question?

Alan H. Levine:

Well, it seems to me at the beginning of the representation of an individual seeking to obtain benefits under existing law, a Legal–

Services funded lawyer makes a determination whether he can proceed in the category of case to just seek benefits under the existing law, or whether the arguments that would be made on behalf of his client would be in some prohibited area, and if it’s going to be in some prohibited area–

Ruth Bader Ginsburg:

Well, I’m… the question I’m asking is, is it a prohibited area to say, the reason why I’m urging this reading of the existing law is, it would be under a constitutional cloud if you read it any other way?

Alan H. Levine:

–Well, Your Honor, it seems to me that the arguments that a Legal Services lawyer makes to the court on behalf of his client are the permitted arguments under the statute.

I don’t think a lawyer, unless questioned by the court, ought to be raising with the court a hypothetical argument that would be–

Ruth Bader Ginsburg:

Not a hypothetical… not a hypothetical argument.

Very often, lawyers urge, and this Court, and other Federal courts will say they’re going to read the statute a certain way to avoid a serious constitutional question.

Nothing abstract about it.

Brandeis has said it, it’s been said many times since, that you read statutes, if possible, to avoid a constitutional question.

So I’m asking, is that such an argument within the ball park for Legal Services Corporation?

Alan H. Levine:

–It seems to me, Your Honor, in a colloquy with the court with respect to a particular claim for benefits under existing law, if a Legal Services lawyer is asked questions that get into, if you will–

Ruth Bader Ginsburg:

Nothing so shy, just up front in the briefs–

Alan H. Levine:

–Up front, that said… the lawyer ought to be saying to that court, if Your Honor wants to pursue that line of inquiry, I can answer it here today–

Sandra Day O’Connor:

–It’s not a question… it’s not a question by the judge.

The lawyer wants to put forward a principle of statutory construction, which is that you avoid interpreting the statute a certain way if it would lead to a serious constitutional issue, and we think it would, says the lawyer.

Is that prohibited?

Alan H. Levine:

–It seems to me, Your Honor, that the lawyer can’t participate in litigation which is seeking to amend or alter the–

William H. Rehnquist:

We know that.

Alan H. Levine:

–statute.

Sandra Day O’Connor:

We know that.

Alan H. Levine:

And so–

Sandra Day O’Connor:

This is a matter of statutory construction–

Alan H. Levine:

–The argument–

Sandra Day O’Connor:

–of statutory construction, that you interpret it so as to avoid a serious constitutional question.

Alan H. Levine:

–It seems to me in explaining the argument, you can make the argument that I am making this argument under existing law so that the court doesn’t have to reach another argument that I would not be permitted to make.

Antonin Scalia:

Mr. Levine, how could you possibly represent a client adequately if you believe there is a serious constitutional question if the statute is interpreted a certain way, and you make that argument to the court, but then you don’t take the next step, which I have never seen avoided, moreover, if you do interpret it this way, it’s unconstitutional?

I mean, if he’s going to make that argument he has to stay out of the case, doesn’t he?

Alan H. Levine:

Yes.

Antonin Scalia:

Okay.

That’s the answer.

David H. Souter:

Then, here’s the problem I have.

When you say that, or when the policy says that the lawyer can bring the case when it amounts to a claim under existing law, I assumed that that meant law properly interpreted, but now you seem to be saying in response to Justice Scalia that if the only way one can reach in effect a proper interpretation of law is to look at the constitutional problem that would result if you see it any other way than favorably to my client, the lawyer can’t make that argument–

Alan H. Levine:

Well–

David H. Souter:

–because the lawyer can’t go to the point that Justice Scalia just mentioned.

Alan H. Levine:

–It’s–

David H. Souter:

And it therefore seems to me that your position is boiling down to saying that existing law means whatever the law is, or only the law, as admitted or stipulated to by the Government.

Alan H. Levine:

–Well, there are–

David H. Souter:

Because the Government is saying, well, we’re denying benefits under existing law, and you’re saying, if existing law can only be properly understood in relation to the constitutional risks, you can’t understand existing law in that way, which virtually limits the right of the Government lawyer even more than I thought he was going to do.

Alan H. Levine:

–Your Honor, the statute permits a Legal Services lawyer to assist a low income person obtain benefits under existing law, and existing law under those circumstances would be what the State welfare reform statute and the regulations provide, and–

David H. Souter:

But we don’t know what… there’s a question about what it does provide, and the argument on avoiding constitutional difficulty is an argument about what the law is, what the law should be understood to be, and that argument, based on your answer to Justice Scalia, is an argument that the lawyer apparently cannot make.

Alan H. Levine:

–That lawyer cannot make that argument, and he shouldn’t take the case in the first place.

The bulk of–

David H. Souter:

So that client has to accept the interpretation of the local welfare office as the law.

Alan H. Levine:

–Oh, no.

No, no.

That client would go and get another lawyer with the assistance–

David H. Souter:

–unless he gets outside counsel–

Alan H. Levine:

–with the assistance of the Legal Services lawyer.

If the Legal Services lawyer here makes a determination that the case that ought to be brought is one that would involve the issues that Justice Scalia has said then the lawyer would say, my… I can’t–

David H. Souter:

–Oh, I understand that, but all I’m saying is–

Alan H. Levine:

–over–

David H. Souter:

–if I understand your position, then there is a category of arguments about what the law is, what the law should be understood to be, that the Legal Services lawyer cannot make.

Alan H. Levine:

–That’s correct.

David H. Souter:

Yes.

Alan H. Levine:

The over… well over–

Sandra Day O’Connor:

Is that some kind of viewpoint discrimination?

Alan H. Levine:

–No.

I mean, it’s simply, Congress is deciding to fund certain categories of welfare benefit cases, and not other categories of cases.

William H. Rehnquist:

What about a Legal Services lawyer under this statute making an argument that a regulation issued by the agency is invalid under the statute?

Alan H. Levine:

That would not be permitted either.

That would be in the category of cases where Congress… where Congress has decided that it will not permit challenges to Federal or State welfare reform systems, and the purpose, the purpose for this really makes sense.

At the same time that these funding… that this appropriations bill was enacted in 1996, Congress was enacting the Personal Responsibility and Work Opportunity statute, and in that statute Congress basically moved responsibility for welfare reform from the Federal Government to the State governments and invited the State governments to develop the State welfare reform programs different than had been done previously.

And at the same time, in the same Congress, Congress said that at the same time that we are providing this responsibility to the States, we are simply not going to pay Federal Legal Services lawyers to get involved in the litigation involving the mosaic and interplay of the Federal and State welfare reform systems, and it made perfect sense.

William H. Rehnquist:

Thank you, Mr. Levine.

Mr. Kneedler, we’ll hear from you.

Edwin S. Kneedler:

Thank you, Mr. Chief Justice, and may it please the Court–

As this Court made clear in Rust v. Sullivan, the Government… when the Government appropriates funds to establish a Government program it is entitled, within quite broad limits, to define the scope of that program.

Sandra Day O’Connor:

Are there limits?

Edwin S. Kneedler:

There are limits, and the principal–

Sandra Day O’Connor:

And what are they?

Edwin S. Kneedler:

–The only situation in which this Court has struck down a Government funding restriction on viewpoint grounds was in the Rosenberger case, and in that case, what the Court held is, there the university had made funds available to encourage a broad diversity of private expression and had created what this Court there termed a public forum and reiterated in the NEA case that–

Anthony M. Kennedy:

Well, in Rosenberger I do think that the Government wasn’t paying for the speaker, and here it’s paying for the speaker.

On the other hand, it seems to me unlike Rust, in that the speech, the message, the communication that’s prohibited doesn’t contradict the Government’s purpose if we say… and I don’t know if we can say, but if we were to say that this was an unlimited forum of some kind, then we have to ask whether or not this restriction is reasonable, and I just don’t see how it’s reasonable for the Government to restrict the presentation of a case on important legal issues to the third branch.

Edwin S. Kneedler:

–Well, Congress did not establish the Legal Services Corporation and the program under it as a public forum.

For purposes of forum analysis the question is whether the Legal Services Corporation is a forum.

That is the program, because that was the program in the Rosenberger case.

Edwin S. Kneedler:

It was the precise expression or activity that was funded by, in that case, the university’s activities, and it… what Congress did in the Legal Services Act was to provide for the furnishing of a particular professional service, just like in Rust, the particular professional service that is not the free expression of ideas of the sort that has been covered by this Court’s free speech cases, it is a professional service in which there are submissions made to a body, either administrative or judicial body, under structural, procedural and substantive–

Anthony M. Kennedy:

It’s a paradigm of free speech.

It’s a petition to the Government.

Edwin S. Kneedler:

–It is, but as this Court said in the Walters case and the Yorkline case, the First Amendment really doesn’t add anything to what has been the traditional source of constitutional guidance in that area, which has been the Due Process Clause.

David H. Souter:

Well, but it does add something, because given the fact, as Justice Kennedy has just pointed out, given the limitations that this kind of forum involve restrictions on relevance and so on, there still is a speech, a central speech element in what’s going on here, and there is a general principle, I think, that when the Government takes action to disfavor speech simply because it disagrees with the Government, you’re getting just about to the molten core of the First Amendment.

And it would seem to me that because that’s what the policy does here, there would be a good reason for us to say, we should not characterize this as simply the Government paying for services.

We ought to characterize it as a speech case, because there’s something very risky going on when the Government’s policy in effect says, you can’t make an argument that disagrees with the Government.

Edwin S. Kneedler:

With all respect–

David H. Souter:

So that’s what I think is extra here.

that’s why I think this is not merely a due process case.

Edwin S. Kneedler:

–But there are many situations in our legal system in which Congress has enacted laws that favor one litigant over another, one sort of claim over another, the furnishing–

David H. Souter:

This isn’t merely favoring.

This is saying, in effect, you may not make the argument that the Government is constitutionally wrong.

Edwin S. Kneedler:

–No.

I think what Congress did here was say that a lawyer may not take on that case to begin with.

In other words–

David H. Souter:

Well, yeah.

Then the result of that is that the lawyer may take on the case insofar as it does not involve a constitutional challenge, but insofar as it involves or could reasonably involve a challenge to the law as being a constitutional mistake, then the lawyer cannot take on the case, which is another way of saying the lawyer cannot, with the incentive of the Government money, say that, or State money, say that.

Edwin S. Kneedler:

–Well, any speech that would happen in a courtroom first of all is not the lawyer’s own self expression.

The lawyer is advancing arguments on behalf of a client, and not as a public forum with a free debate.

The lawyer is making arguments that have legal consequences.

Anthony M. Kennedy:

Is the Government the client?

Edwin S. Kneedler:

The Government is not the client, but what the Government is, is, it is the Government that established the program and, as this Court held in Rust, that when the Government establishes a program, it is entitled to encourage certain activities and not others, and–

Anthony M. Kennedy:

Well, but we said in Forbes, the public television case, that when the Government established its forum you have to give certain discretion to the immediate speaker to preserve the integrity of the message.

In that case, the integrity of the message was preserved by excluding certain views.

Here, the necessity is the argument, the argument is that the necessity is to add certain speech to preserve the integrity of the message for the forum that’s been created.

Edwin S. Kneedler:

–In Forbes it is possible to think of what was going on there as a debate, and classically a debate among candidates about political issues.

We have never thought in our legal system of a courtroom or lawyers as engaging in a public policy or political debate.

They are–

David H. Souter:

Well, the terms of the debate by the lawyer may not be political, but the lawyer’s raising of constitutional issues is normally a direct response to what, in fact, is the result of a political debate.

David H. Souter:

So you can’t exclude, in effect, the significance of politics from constitutional challenges.

Edwin S. Kneedler:

–No, but once the matter has been reduced out of the lobbying or the political sphere into the litigation sphere, we have a set of procedural and substantive rules that have legal consequences.

When a complaint is filed in court, the other party must respond and the court will enter a judgment.

David H. Souter:

Well, that’s right, but if I may just cut you short a little bit on that, those rules allow for challenges to what are political determinations by the Congress.

They allow challenges to political results.

Edwin S. Kneedler:

If I could just go back to the Rust case, what the Court said there, and it is very similar, because it had to do with the furnishing of particular services, and particular types of expression were not permitted under that program.

David H. Souter:

But it was Government expression.

Edwin S. Kneedler:

No, it was… I… it was not–

David H. Souter:

The doctors, I thought, were hired to give the Government’s message, and only that message, to the people that they counseled.

Edwin S. Kneedler:

–I don’t think that’s a fair characterization of the program in Rust, and in fact the respondents in this case concede that the Government was not the speaker.

What the Government was doing was paying for counselors to exercise their professional judgment in their interactions with clients.

That did not lead to a one directional urging for every person who walked in the door to have family planning.

It was counseling to help the client come to her own conclusion as to what the result was.

It was professional services, professional judgments just like this one is, and what the Court said–

John Paul Stevens:

May I ask–

Edwin S. Kneedler:

–some types of services are outside the scope of the program, and that’s exactly what Congress said here.

Ruth Bader Ginsburg:

–Mr. Kneedler, may I ask you a question about… and you keep bringing up Rust, and it seems to me that whatever else is wrong with this, it fails the line that runs from Speiser v. Randolph.

That is, what you’re saying is not only can’t you use the Government’s money to speak the speech, but you can’t use your private money to do it, and I thought in all those cases, the lobbying cases, sure, we don’t have to pay for your lobbying, but we can’t stop you from doing it with your own money.

Edwin S. Kneedler:

If I could make two responses to that.

First of all, in Rust itself, the Court recognized that the matching funds that were required under Title X were also subject to the restrictions, and that’s in footnote 5 of the Rust decision.

But beyond that, what the Legal Services Corporation provided for here is exactly what was provided for in Rust, which was allowing the recipient to set up a separate entity to engage in the activities that could not be engaged in by the recipient itself.

The LSC regulations were patterned directly after the regulations in Rust, and–

Ruth Bader Ginsburg:

And so the same lawyer could present this… the argument without any inhibition, using the counterpart organization.

Edwin S. Kneedler:

–The… it would… the matter would have to be presented by the counterpart organization.

Now, if the… if the lawyer involved was a part time lawyer with the Legal Services funded recipient, and worked separately for the other entity, and there was the requisite separation of functions, yes, that lawyer could present the arguments, assuming that the separation requirements were met in the other program.

But that… what the Legal Services Corporation did here is consistent with the Regan decision, with League of Women Voters, and most significantly with Rust, in providing for that private expression.

But of course, that’s to allow for the recipient’s private expression, the association’s private expression.

Here, I think it’s also important to bear in mind that the vast majority of the funds, non LSC funds that are received, are also public funds, the IOLTA funds, the State funds, so we’re not talking about an entity that has a large amount of private funds of the sort a typical private association would have.

Ruth Bader Ginsburg:

Well, this would be tagged onto, say, State funds, this restriction, as well as–

Edwin S. Kneedler:

This fund does… this restriction does apply to State funds.

John Paul Stevens:

–Mr. Kneedler, let me… would you just clear up one factual thing for me?

If, after a lawyer’s been working on a case for a month or two, he finds out there’s an argument of this kind in the picture, must he withdraw?

Edwin S. Kneedler:

Yes.

The statute does it.

I would like to reserve the balance of my time, if I may.

William H. Rehnquist:

Very well, Mr. Kneedler.

Mr. Neuborne, we’ll hear from you.

Burt Neuborne:

Mr. Chief Justice, and may it please the Court–

The principal legal issue before the Court this morning is narrow and precisely tailored.

May Congress choose to provide Federal subsidies to a broad array of private lawyers in order to commit them to represent poor clients in litigation in a particular area of the law, in this case welfare law, but forbid the subsidized lawyers from using the Federal funds to raise any argument in court which seeks to challenge or amend existing law, for the extraordinary sweep that the Legal Services Corporation has conceded that those words are to be given.

In short, may Congress condition a subsidy to a lawyer for the poor on an explicit requirement that the subsidized lawyer argue only in favor of enforcing the legal status quo as that is defined by the last regulation to be issued down the legal chain, and not challenging in any way, by raising its constitutionality, its insufficiency to follow statutes, or its inappropriate construction and creation… yes, sir.

Antonin Scalia:

You can put it that way, but you can just as readily put it, may the Government fund representation in cases that raise certain issues and not fund representation in cases that involve other issues.

It’s not a matter of muzzling someone who’s taking on a case.

It’s a matter of the Government saying, this is the category of cases where we pay for representation.

This is another category of cases where we don’t pay for representation.

We’re not muzzling anybody.

Burt Neuborne:

Yes, sir.

We have no quarrel with the general principle that the Government has broad power to determine the kinds and categories of cases that it wishes to fund.

Antonin Scalia:

What’s wrong with a category of case that involves welfare recipients, but does not involve a challenge to the constitutionality of the welfare law, or the validity of regulations enacted under the welfare law?

What is wrong with that as a category?

Burt Neuborne:

What’s wrong with it, Justice Scalia, is that it is overtly viewpoint based.

When the Government simply merges its idea of category into the notion of whether or not the Government… a lawyer for the poor is to be permitted to raise an argument that challenges the Government’s own viewpoint about what the law should be, the Government has simply taken and broadened a power of categorization but used it to permit the argument of one side of this question and not the argument of another.

Antonin Scalia:

It doesn’t favor one side or the other.

It just denies representation in certain categories.

It seems to me any category of case is viewpoint based.

It’s hard to imagine picking out a category of case that doesn’t simply eliminate other categories that have a particular viewpoint.

Burt Neuborne:

With respect, this is a unique restriction.

This is the only restriction that I’ve ever… or that I believe exists, in which the Government has said that you can represent someone in court, in a particular subject matter area, but you cannot challenge the existing legal status quo.

Antonin Scalia:

But it hasn’t said that.

It has said, you can represent someone in court so long as it is a case that does not involve a challenge to this event.

Burt Neuborne:

Yes, but that’s simply–

Antonin Scalia:

There’s a big difference.

Burt Neuborne:

–Well, with respect, I don’t believe so, because all it does is impose an unconstitutional condition on the subsidy.

What it says to the lawyer and to the client is that it will give you this money.

It will give you this money on condition that there is to be no argument raised in this case that challenges the legal status quo.

William H. Rehnquist:

What if the statute said, Mr. Neuborne, that these Legal Service lawyers could represent low income clients seeking welfare benefits, but they… once a case went to court, they could not handle it?

Burt Neuborne:

In other words, a categorical restriction saying no welfare cases.

William H. Rehnquist:

Well, at the administrative level, yes–

Burt Neuborne:

Yes.

William H. Rehnquist:

–but you–

Burt Neuborne:

That would be–

William H. Rehnquist:

–we won’t fund you going into court.

Burt Neuborne:

–That, Chief Justice, would be a very different case.

That–

William H. Rehnquist:

What would be your answer to that?

Burt Neuborne:

–There is… it would depend on the motive with which the restriction was imposed.

If the motive had been imposed in order to weaken the enforcement to dissipate in legal rights, then it would be viewpoint discriminatory then.

If the motive–

Sandra Day O’Connor:

Well, why wasn’t Rust a situation involving some kind of viewpoint discrimination under your view?

I mean, we have to deal with Rust.

Burt Neuborne:

–Under the Court’s decision in Rust, a fundamental distinction was raised, and if I could compare two cases that the Chief Justice wrote, I think it demonstrates that.

In TR… in TWR, this Court held that there is substantial power to differentiate among speakers in granting subsidies as long as viewpoint neutral criteria are used.

In Rust, the Court went one step further.

The Court then said, where the Government is in fact not… is in fact a participant in this speech forum… in other words, where the Government wishes to expound its own message–

William H. Rehnquist:

Well, Mr. Neuborne, Rust doesn’t say where the Government wishes to expound its own… Rust didn’t say that the Government is the speaker.

Burt Neuborne:

–Well, my understanding, Chief Justice, is that is the way the Court has construed subsequent cases.

William H. Rehnquist:

Well, are you talking about the Rust opinion… you say you’re going to compare two cases which I wrote, one of them being TWR–

Burt Neuborne:

I’m sorry.

William H. Rehnquist:

–and one being Rust.

Did you get that out of the Rust opinion?

Burt Neuborne:

That’ll teach me to do that.

[Laughter]

The… as I read the Rust opinion, and this is before Rosenberger put the gloss on it that I’ve attempted to present this morning, but as I originally read the Rust opinion, and as I believe it’s fairly read, Rust was a case in which the Government had a substantive program with a particular point of view that it wished to have disseminated and was hiring doctors to disseminate that point of view and not the other point of view, and as long as the Government–

Sandra Day O’Connor:

Well, maybe here the Government has a welfare program and they believe in it, and they don’t want it challenged.

Burt Neuborne:

–Well, but that point of view… yes, the only difference here is that the Government does have a Rust speaker in this case.

The Government’s Rust speaker in this case is the Government’s lawyer.

That’s the Government program that the Government speaks through, through its program.

What the Government is attempting to do here–

Anthony M. Kennedy:

It’s not the Government’s lawyer, it’s the client’s lawyer.

Burt Neuborne:

–No, what I meant, the Government, the other lawyer in the case–

Anthony M. Kennedy:

Oh.

Burt Neuborne:

–is the speaker that would fall within the Rust parameters.

That is a situation where the Government has hired somebody to speak for the Government, to advance a Government message.

What the Government is attempting to do here is to commandeer the voice of the other lawyer in the case as well, and this Court has already unequivocally held that a subsidized lawyer for the poor does not act under color of law precisely because the subsidized lawyer doesn’t speak for the State, may not be permitted to even think about speaking for the State, because the lawyer’s duty is to the client, and to insulate the lawyer from the possibility of being controlled by the State, in the… this Court has held unequivocally that the lawyer doesn’t act under color of law.

Now, if–

David H. Souter:

Mr. Neuborne, I want to get you to state your first premise, and I think it’s this, but if I’m wrong, that’s what I want to find out.

You’ve got one principle.

To state it crudely, the Government can decide what to pay for and what not to pay for.

Burt Neuborne:

–Yes.

David H. Souter:

You’ve got another principle that says, the Government cannot use its leverage, whether it be by subsidization or otherwise, to engage in viewpoint discrimination.

Burt Neuborne:

Yes, sir.

David H. Souter:

Is your basic principle that whenever a given set of facts could be characterized by either one or the other of those principles, that the First Amendment principle always prevails, that trumps the other one, that there always should be a choice to characterize the issue as a speech issue, not as a mere subsidization issue?

Burt Neuborne:

I’m not sure I understand what… your question, but I’ll try to answer it.

My principle is this–

John Paul Stevens:

He’s asking you if Rust has to be overruled to decide this case.

[Laughter]

Burt Neuborne:

–Thank you, Justice Stevens.

David H. Souter:

Why don’t you answer my question?

[Laughter]

Burt Neuborne:

I used to have a fantasy saying I was going to put one of you on hold while I answered this question.

Burt Neuborne:

[Laughter]

The question… may I answer them in order?

Justice Souter’s question I think applies where the activity itself that the Government is funding is so permeated with First Amendment overtones, as this Court has noted.

I mean, speech in court on behalf of a poor client can be a petition to redress grievances.

It is a forum of ideas.

Of course it’s not a public forum, but it’s a specialized forum in which the clash of ideas is crucially important, and in which the Government may never be permitted to put its thumb on the scales of those ideas in an effort to use law to control viewpoint, and the viewpoint here is the viewpoint of legality.

As Justice Kennedy pointed out in the Rosenberger opinion, when you exclude an entire perspective from a forum you have skewed that forum forever.

William H. Rehnquist:

But Rosenberger was a definite creation by the Government of a forum, and I really question your analogizing the… what many people call a forum in court, as the same thing as the Government creating a forum.

It really isn’t at all.

Burt Neuborne:

It’s not necessarily the same thing.

The forum in Rosenberger, of course, was the creation of a limited public forum for widespread speech.

The forum that we have here is the creation of a funding stream designed to enhance and permit speech within a court.

Now, that’s not the same thing as a public forum.

Nobody can walk in off the street–

Anthony M. Kennedy:

So you would concede that it’s lawful to prevent the attorney, using Government funds, from engaging in lobbying activities, or writing a Senator saying please change this law to make it more clear, et cetera?

Burt Neuborne:

–Well, unless one could identify a forum in which that would take place.

I don’t concede that that’s unconstitutional… that that’s necessarily constitutional, because if it was done with the intention of making it difficult to provide a particular point of view to the Government, it would raise problems.

But for the purposes of the argument this morning, we do have the most discrete forum that you can think of.

It is a forum–

Anthony M. Kennedy:

My next question was going to be, we then have to identify something that looks like a forum and that we can call a limited forum.

Burt Neuborne:

–Well, or, as you wrote in Arkansas Public Television, a private forum, because in Arkansas Public Television, which I believe is the most relevant precedent, in Arkansas Public Television, the Court was confronted with a forum that itself had constitutional protection, where the participants in that forum, the public journalists, were themselves entitled to a degree of First Amendment protection.

And I think what this Court, as I read Arkansas Public Television, what this Court held is that when the journalists are essentially exercising their own editorial discretion, when they’re speaking for themselves, then they’re essentially Rust participants, and they’re entitled to say what they would, to engage in all sorts of viewpoint determination, and no one has the right, simply because public funds are being used, to claim that there is a command that other types of speech have been determined.

Antonin Scalia:

I confess to being really confused by this forum discussion.

I don’t see the creation of any forum here.

It seems to me the forums involved are courtrooms that are deciding particular cases.

There is not one single forum; there are courtrooms deciding particular cases.

And it seems to me the Government has said, you can go into this forum and you can’t go into the other forum.

Burt Neuborne:

Yes, but it–

Antonin Scalia:

It’s not a matter of discriminating between speakers in some single forum that the Government has invented.

Burt Neuborne:

–With respect, Justice Scalia, I don’t think the Government can say… is saying you can go into this forum and not that forum based on an effort to insulate its viewpoint from challenge.

Burt Neuborne:

It is the fact that these are viewpoint discriminatory criteria that the Government is using to condition access to the forum.

Antonin Scalia:

Perhaps so, but not conditioning access to a single forum.

They’re saying you can go into some forums, and you can’t go into some other forums.

Burt Neuborne:

Well, you can go into a courtroom as long as you argue in favor of the Government’s status quo.

You cannot enter the courtroom–

Antonin Scalia:

That’s not so.

Burt Neuborne:

–if you argue against the Government’s status quo.

Antonin Scalia:

That’s not so.

You cannot go into the courtroom if certain issues are involved.

I don’t care what side you’re on here.

Burt Neuborne:

No, but–

Antonin Scalia:

We’re not going to fund if certain issues are involved in the case.

Now, there are other forums where those issues aren’t involved, and you can go into theirs.

Now, maybe there’s something against that, but it seems to me it doesn’t analogize to creating a single forum and then discriminating among speakers in some single forum.

Burt Neuborne:

–With respect, Justice Scalia, I don’t mean to belabor the point.

The forum here is a courtroom.

The forum is one of the most traditional places where ideas are exchanged and where individuals petition for redress and speak on important issues.

Antonin Scalia:

It’s not all courtrooms.

It’s only courtrooms involving certain categories of cases.

Burt Neuborne:

I know, but–

Antonin Scalia:

Isn’t that right?

Burt Neuborne:

–Yes, but the–

Antonin Scalia:

So–

Burt Neuborne:

–But the statute defines those courtrooms.

What the statute says is, you can speak freely in a forum in which you advance the status quo.

You cannot speak freely in a forum in which you do not.

Now, whether–

Anthony M. Kennedy:

–We do have in some States, the State of California I know, the rule that an administrative agency cannot question the constitutionality of a statute.

Burt Neuborne:

–Yes, but of course that’s, one, in an administrative proceeding, it is not in a judicial proceeding, and there’s no effort to condition a subsidy on a willingness to either agree or not agree with the Government’s status quo.

Anthony M. Kennedy:

Well, I’m saying it’s not unheard of to have forums for the adjudication of legal issues where that forum itself is limited.

Anthony M. Kennedy:

It’s of course–

Burt Neuborne:

Oh, yes.

Anthony M. Kennedy:

–not a Federal court.

Burt Neuborne:

Yes.

William H. Rehnquist:

Well, there’s also a doctrine from this Court that municipal corporations created by the State can’t challenge State regulations.

Burt Neuborne:

Yes, and those are substantive rules of law governing power here, but here what the Government has done is taken a subsidy, a speech subsidy, a crucially important–

Stephen G. Breyer:

Suppose that I was worried about the public forum doctrine, not knowing what happens if you start applying it in the way you want, but suppose I accepted your argument… this is all hypothetical.

Burt Neuborne:

–Yes, I mean, could I just–

Stephen G. Breyer:

Suppose I accepted your argument–

Burt Neuborne:

–it’s a private forum.

Stephen G. Breyer:

–Well, whatever kind of a forum.

There’s a whole speech mechanism there that you’re suddenly transposing here, and suppose I nonetheless agreed with you, for hypothetical sake, that this is a very unreasonable thing in respect to a client who may be entitled to money, i.e., property owed by the Government.

Well, why wouldn’t it be unlawful under the Due Process Clause?

Burt Neuborne:

Well, it would.

It would be unlawful under the–

Stephen G. Breyer:

All right, so–

Burt Neuborne:

–Due Process Clause.

It would also be unlawful under–

Stephen G. Breyer:

–if it’s unlawful under the Due Process Clause, why do we even have to get into this argument?

Burt Neuborne:

–We don’t.

We urged the Due Process Clause below.

We would welcome a Due Process Clause decision from the Court.

Ruth Bader Ginsburg:

May I suggest one other strand that, I wondered why you didn’t pick it up?

One could view this as a classic unconstitutional condition case.

That is, here we give you a pot of money, like we give you whatever the benefit was in Speiser, but if with your own money you’re going to do what we don’t want to have heard, then not only are we not going to fund that, but we’re going to pull the money, and… but you didn’t explicitly argue that, and I wondered why.

Burt Neuborne:

Well, I was going to answer Justice Breyer along those terms.

There is a powerful… entirely apart from viewpoint discrimination, there’s a very powerful, really two pronged unconstitutional conditions argument.

The first prong of the unconstitutional conditions argument says that what’s happening here is, the Government’s conditioning the formation of an attorney client relationship, not only that, the formation of an attorney client relationship of great intensity, because it looks forward to actual litigation in court.

It is welfare litigation that’s being funded here.

So that the Government is funding this intense associational relationship, but it is imposing a condition in which you waive the ability to make certain arguments under it.

Burt Neuborne:

In other words, you can only have–

Anthony M. Kennedy:

And what constitutional provision does that violate?

Burt Neuborne:

–Freedom of association.

It’s a–

Anthony M. Kennedy:

All right, so it’s a free speech case anyway.

Burt Neuborne:

–Well, it’s a First Amendment case, but it doesn’t require Justice Breyer’s concern about dealing with forum analysis.

It is a First Amendment case.

The other argument that–

Antonin Scalia:

Before you get off of unconstitutional conditions, it seems to me you can convert Rust and, indeed, every Government funding case into an unconstitutional condition case if you’re of such a mind.

Burt Neuborne:

–Well, I–

Antonin Scalia:

The Government decides to fund art.

Well, you know, as a condition of your getting this money you have to produce art.

You can’t produce, you know, history or something else.

Every funding you could character… it doesn’t seem to me to advance the ball a bit.

Burt Neuborne:

–Well, that’s a fair critique, but what’s different here from, say, an art funding case, or something like that, is here you’re funding an intense associational relationship that this Court has already held is entitled to protection against Government manipulation.

It’s the language, it’s the dictum in Rust itself that said, if this were a traditional doctor patient relationship, if this were a traditional relationship between a university teacher and a student, and I believe certainly a traditional relationship between a lawyer and a client, that the First Amendment guarantees a degree of autonomy to that relationship.

The Government cannot, simply because it’s paying for the relationship–

William H. Rehnquist:

Well now, Rust did not say that.

Burt Neuborne:

–No, it was dictum.

It was dictum.

William H. Rehnquist:

Well, it was not only dictum, but it said it might be a different case.

Burt Neuborne:

Yes.

William H. Rehnquist:

It didn’t say that the opposite rule would prevail.

Burt Neuborne:

Yes, that’s absolutely true, Your Honor.

I’m not suggesting that Rust–

William H. Rehnquist:

I thought you were.

Burt Neuborne:

–demands this.

I was simply saying that in Rust you alluded to it in your opinion and said it might be a different case, and I’m suggesting this is that different case.

Ruth Bader Ginsburg:

Mr. Neuborne, I don’t quite understand your answer to Justice Scalia, because I would have thought you would have said about the art is, sure, the Government doesn’t have to buy a painting that it doesn’t like.

It doesn’t have to buy an indecent painting, but it can say to this artist that’s painting on Government funds, it’s a lovely portrait, but with your… in your own… for your own collection, or for your other gallery owner, you can’t do indecent art, and that’s–

Burt Neuborne:

No, I was certainly not… I certainly didn’t intend to suggest that you could condition restrictions on the use of private money based on an art subsidy, and that’s the other unconstitutional condition here.

Ruth Bader Ginsburg:

–Yes.

Burt Neuborne:

The other unconstitutional condition here is, it takes the very substantial… and I must disagree with the Solicitor General.

It takes very substantial private resources.

There are State resources, but there are also very substantial private resources donated to Legal Services offices to enable them to provide certain service to the poor.

It takes that money, and it essentially says, you can’t use that money to advance these arguments unless you set up an enormously expensive, enormously burdensome separate facility from which to carry out the entity, so that it essentially places a huge burden on the use of private money, and it’s a burden different from Rust, because the burden in Rust was a burden that was justified because it was the Government speaking, and because it was the Government speaking… I’m sorry, sir.

William H. Rehnquist:

Rust did not say it was the Government speaking.

Burt Neuborne:

No, sir, but I’m trying to distinguish Rust.

In Rust, as Justice Kennedy and as the Court has indicated on a number of occasions, there were at least three cases in which Rust has been explained as a Government speech case, not necessarily the Government itself.

William H. Rehnquist:

No.

What Rosenberger said, which perhaps you’re referring to, is that the Government used private speakers to transmit specific information pertaining to its own program.

Burt Neuborne:

That’s what–

William H. Rehnquist:

It didn’t say that the Government was the speaker.

Burt Neuborne:

–I stand corrected.

William H. Rehnquist:

Even Rosenberger didn’t say that.

Burt Neuborne:

That’s what I meant.

When the Government has a substantive message that it wishes conveyed, and it either uses its own employees or private people to do so, the Government then is essentially acting as a participant in the speech process and can engage in viewpoint discrimination.

That is clearly not the case here.

Here, no one could argue that a lawyer for the poor is somehow disseminating a Government approved set of information pursuant to some substantive approach.

Sandra Day O’Connor:

Unless you say the Government here, acting through Congress, wants everybody to say the welfare laws are fine as written.

Burt Neuborne:

Well, and that’s exactly what–

Sandra Day O’Connor:

That’s the message.

Burt Neuborne:

–Yes.

That’s exactly what–

Sandra Day O’Connor:

And that’s kind of close to Rust.

Burt Neuborne:

–Well, but it’s also kind of close to Barnett.

If… to Barnett… that the Government cannot… West Virginia v. Barnett.

The Government simply can’t compel everyone to say that the welfare laws are fine as written, and they can’t use the sub… a subsidy to breach that.

William H. Rehnquist:

Well, Barnett was where you required someone to affirmatively say something they didn’t believe.

I don’t see any requirement of that degree here.

Burt Neuborne:

Well, if you’re a Legal Services lawyer, you either stay out of the case if there’s an important constitutional question, or, if you’re going to take the case, you have to take the case on condition that you don’t raise certain arguments about the validity of the Government’s program.

That essentially silences–

Antonin Scalia:

Oh, I don’t think that’s an option.

I think given professional responsibilities, the only option is the first.

Burt Neuborne:

–Well–

Antonin Scalia:

They cannot take the case.

Burt Neuborne:

–The option of not taking the case is very difficult, first because Legal Services clients, or welfare clients don’t appear on your doorstep, Justice Scalia, color coded by argument.

When you enter the relationship of attorney client in these cases, you do so with someone that appears, you have to… you speak to them, you have to interview them, you have to investigate the case.

It is–

Antonin Scalia:

It may be an unintelligent law, then, but I don’t know that that–

Burt Neuborne:

–Well, but it–

Antonin Scalia:

–has any bearing upon its unconstitutionality.

Burt Neuborne:

–If it–

Antonin Scalia:

It may be a lot of trouble to sort out those cases that the Government wants to subsidize and those cases that it doesn’t want to–

Burt Neuborne:

–Well–

Antonin Scalia:

–maybe it’s too much trouble.

Burt Neuborne:

–Can I suggest a very bright line, and it may be too bright a line, but the line is this, and I think it’s the line that emerges from the Court’s cases.

When it is a private speaker, speaking on behalf of a private person, and the speech is directed to a forum, in this case a courtroom, which is important for the clash of ideas, the Government may not use viewpoint as a criteria for determining how the funds are going to be used.

Anthony M. Kennedy:

Suppose I told you that I begin with the premise that the restriction on lawyers lobbying for legislative changes or writing legislators, et cetera, is valid.

How could I reach that conclusion and adopt the premise you just suggested to the Court?

Burt Neuborne:

Well, I… under those circumstances… you mean the lawyer lobbying on behalf of a client–

Anthony M. Kennedy:

I want you to assume that that’s a valid statute and a valid restriction.

Burt Neuborne:

–Yes, and the lawyer can’t lobby on behalf of a client as well as on his own… on behalf of his own beliefs.

Anthony M. Kennedy:

Could I reach that conclusion and still adopt the premise that you just suggested to the Court?

Burt Neuborne:

Yes, I believe you could.

I believe you could first because of the–

Anthony M. Kennedy:

Then why isn’t the Congress a forum, et cetera, or a legitimate place to petition, et cetera?

Burt Neuborne:

–Well, it is, and I believe that that would be an unconstitutional statute.

But I believe that that statute does not require you to lobby on one side of the issue and not lobby on the other.

In other words, if the restriction were written, you can’t lobby to change the status quo, but you can lobby to somehow cement the status quo, that would be a viewpoint based discrimination.

Anthony M. Kennedy:

But–

Burt Neuborne:

If it is simply a categorical ban on all types of conduct, regardless of whether it is viewpoint based or not, that’s a very different story.

William H. Rehnquist:

–But your status quo argument is a very fast, you know, moving target too.

You can certainly say that an attorney who goes into court and urges that his client receive a welfare benefit is… argues to change the status quo.

The status quo is that the Government now has the money.

He wants to change the status quo, have his client get the money.

Burt Neuborne:

Yes.

William H. Rehnquist:

So it’s not just all–

Burt Neuborne:

In fairness, though, it’s the legal status quo.

It’s the legal–

William H. Rehnquist:

–Well, yeah, but, sir, that is just a question of how you define the thing.

Burt Neuborne:

–Well, but that’s what the statute says.

The statute says you can’t go into court, and you heard today the Legal Services Corporation concede the enormous reach of it.

You cannot go into a court and challenge whether or not a particular regulation or statute is or is not a valid regulation or statute.

You must take it as written, and apply it as written.

That, I suggest to you, is a core viewpoint based discrimination, and a core interference with what attorneys ordinarily do for clients, and so it is an interference with the autonomous relationship, because it tells the lawyer what arguments the lawyer is allowed to make and what arguments he’s not.

Now, if–

Antonin Scalia:

Mr. Neuborne–

Burt Neuborne:

–it is not the viewpoint–

Antonin Scalia:

–suppose during World War II… I don’t know if the Government did this, but suppose it decided to subsidize patriotic films.

It wanted to give Hollywood producers money to produce films that would buoy up the spirit of the American people during the war.

We don’t want Ginger Rogers, we want Humphrey Bogart and Casablanca and all the anti Nazi–

Burt Neuborne:

–Well, Ginger Rogers could be patriotic.

Antonin Scalia:

–Okay.

Is that okay?

Burt Neuborne:

It might be, sir, yes.

Antonin Scalia:

But you can’t do Ginger Rogers and Fred Astaire, just Bogart, or you know, other patriotic type films.

Burt Neuborne:

Well, that’s very close to the hypothetical that you used on a number of occasions about the National Endowment for Democracy.

We don’t claim… it is not our argument that just because you fund the National Endowment on Democracy you have to fund the National Endowment on Totalitarianism.

Where the Government sets up a program to express its own views, the Government has broad power to do so, and during the war, to set up a program to help patriotism–

Antonin Scalia:

It’s not expressing its own views.

I mean, it’s just a particular category of views that it wants to subsidize.

These aren’t… it’s not writing the movies.

It wants patriotic views subsidized.

Burt Neuborne:

–Well, but with respect, Your Honor, that is precisely the kind of program in which the Government… it’s like Rust.

The Government says there are a series of ideas we want to get out there.

Those are good ideas, and we’re prepared to pay for them, and we are prepared to in a sense subsidize people to speak for us, for the Government.

If that’s what’s happening, then its constitutional.

If, on the other hand, what they’re doing is subsidizing large numbers of private individuals to speak without creating a Government program… and the big difference here is Pope v. Johnson.

Pope v. Johnson says you can’t think of a subsidized lawyer as someone who is simply parroting the Government’s line.

Antonin Scalia:

Yeah, but why can’t the Government say the things we’re interested in subsidizing here is, where someone has been denied benefits to which he’s entitled under the text, we’re not going to get into, you know, whether the regulations are okay, or the statutes are okay.

It’s just this one thing we want to subsidize.

Burt Neuborne:

No, because in order to–

Antonin Scalia:

Just like we want to subsidize patriotism, we don’t want to subsidize Ginger Rogers, we want to subsidize, you know, making… defending claims under the text of a statute.

We just don’t want to go beyond that.

Burt Neuborne:

–Because they’re speaking through a person who cannot possibly be thought of as expressing the Government’s view, and if what it wishes to do is speak through someone who does not express the Government view, it cannot use viewpoint based criteria for allocating the subsidies.

Antonin Scalia:

Well, I don’t think Humphrey Bogart would want to be thought of as being a mouthpiece for the Government’s view–

Burt Neuborne:

Well, he would be.

Antonin Scalia:

–or the producer of the case for that matter–

Burt Neuborne:

He would be.

Antonin Scalia:

–of the movie.

Burt Neuborne:

He would be, if he was funded pursuant to a Government program that was designed to foster patriotism during war as part of the Government’s propaganda apparatus.

Now, he may not like being called that, but that’s what he is.

Sandra Day O’Connor:

Well–

Burt Neuborne:

And… but that’s very different from saying they’re going to fund a bunch of university professors to conduct some research and then say to the university professors, the only kind of things that you could say are things that support the status quo, not things that don’t support the status quo, because the university professors cannot be perceived as speaking for the Government under those circumstances, any more than the lawyer here can be seen as speaking for the Government.

The bright line, the test that this Court has set out–

Sandra Day O’Connor:

–Well, it can–

Burt Neuborne:

–is a good test, it works.

I’m sorry, Justice O’Connor.

Sandra Day O’Connor:

–I didn’t notice your light was on.

Sandra Day O’Connor:

I’m not going to ask you.

Burt Neuborne:

Thank you.

The test that this Court has set out is not a perfect test.

It’s hard to decide whether or not someone speaks for the Government or does not speak for the Government.

In Rust, I think the Court got it wrong.

The Court treated the doctors as though they were speaking for the Government, which means that the principle with Rust–

William H. Rehnquist:

Thank you.

Thank you, Mr. Neuborne.

Burt Neuborne:

–Thank you, Your Honor.

William H. Rehnquist:

Mr. Kneedler, you have 5 minutes remaining.

Edwin S. Kneedler:

Thank you, Mr. Chief Justice.

It’s important to bear in mind that what we have here is what type… is a question concerning what type of professional services is the Government going to pay for under a Government program which is neither a regulation nor is it a funding restriction that affects private expression of the sort that was involved in NEA.

It is funding professional services.

I also take substantial issue with respondent’s claim that all that Rust covers is Government speech.

As the Chief Justice pointed out, Rust itself did not say that, and this Court’s subsequent cases have not said that.

In the Rosenberger case, for example, in addition to the passage the Chief Justice quoted about using private persons to deliver a message pertaining to the Government’s own program, on page 630… or 834, the Court further said, it does not follow from the Government speaking… where the Government itself speaks, that it does not follow that viewpoint based restrictions are proper when the university does not itself speak, or subsidized transmittal of a message that it favors, but instead expends funds to encourage a diversity of views from private speakers.

The dichotomy that was created in Rosenberger was one where the Government is subsidizing essentially a forum where the Government gives money to a forum and asks the private speakers to have at it with one another for the benefit of the public at large, which is different from subsidizing a message the Government favors.

Here, although the Legal Services lawyer opposing a State agency may not be advancing the Government’s speech, the Government has decided that when it comes to a challenge of a State welfare regulation, that is not a message that the Government favors within the meaning of Rust.

And again, NEA and the Wisconsin case last term did not suggest that Rust was limited to situations where it is the Government’s own speech.

One way in which this case raises even less of a First Amendment question than Rust is the fact that in Rust the doctor was not even permitted to advise the client where other services could be obtained.

Under this program, the Legal Services lawyer, if he or she identifies a possible challenge to a statute or regulation, may tell the client that, may refer the client to another agency, to a pro bono list.

Every LSC recipient is required to have a private attorney involved in the program with a list of attorneys to whom cases may be referred, so there is no gagging of communications at all.

Even though there’s no attorney client relationship, the LSC fund recipient can refer the client.

Also, in the context of litigation, to the extent the courtroom is a forum, it’s a forum that exists independent of the Legal Services Corporation.

What the Legal Services Corporation does is decide what sorts of cases are going to be funded, and there isn’t enough money to go around.

Congress had to decide how those moneys should be allocated.

Lawyers do this all the time.

Legal Services recipients do this all the time, in terms of setting their own priorities.

With respect to issues concerning challenging the Government’s position, one need look no further than sovereign immunity on the State level to the Eleventh Amendment to recognize that there are many situations in which the Government may decline to allow challenges in court to its own positions and, by the same token, Congress could certainly choose not to… could repeal the Equal Access to Justice Act and not provide attorney’s fees to people who want to sue the Government, even though it may provide attorney’s fees for suits against private parties.

And as we point out in our brief, Congress has provided differential standards for the award of attorney’s fees, favoring plaintiffs in certain types of cases like environmental cases or civil rights cases, but not favoring the defendants in those cases.

Edwin S. Kneedler:

As Justice Scalia pointed out, all litigation has two sides, and in one respect could be viewed as viewpoint, but this Court has never analyzed regulations on attorney conduct or the attorney client relationship in that way.

Also, with respect to the argument that this is an anti Government… a prohibition against anti Government speech, this is… there’s not a monolithic Government here.

This statute prohibits an LSC recipient from taking on a case where what she would be doing would be challenging a State regulation as being in violation of Federal law.

In other words, it would be a situation where the lawyer might even be trying to vindicate, in her view, what Federal law says on the subject, but still the client is not, or the attorney is not permitted to take that on.

Congress could reasonably determine in the allocation of scarce resources that that was a better allocation of the resources.

William H. Rehnquist:

Thank you, Mr. Kneedler.

The case is submitted.

The honorable court is now adjourned until Tuesday, the tenth of October, at ten o’clock.