Statement of Frank Askin
ACLU General Counsel
Legal examination of Congress' continuing assaults on both equal justice for the poor and the free-speech rights of government grantees will be merged this term in Legal Services Corp (LSC) v. Velazquez (No. 99-603), a case out of the Second Circuit.
Velazquez involves a challenge to a provision, first enacted as part of the 1996 Omnibus Consolidated Recissions and Appropriations Act, that prohibits Legal Services lawyers, even when using private funds, from challenging the constitutionality of restrictive welfare laws. Although the statute specifically authorizes LSC-funded lawyers to represent poor clients in their pursuit of benefits, it disallows any challenge to existing laws. In essence, the law requires counsel to try such cases with one arm tied behind their backs and prevents them from zealously representing their clients' interests, as required by the canons of ethics.
This provision was too draconian even for a Second Circuit panel that upheld every other challenged restriction on Legal Services lawyers. Writing for the majority, Judge Leval held that Congress violated the First Amendment rule against viewpoint discrimination by creating a system in which LSC-funded lawyers are free to argue that existing welfare laws are constitutional but are forbidden from arguing that existing welfare laws are unconstitutional.
Sadly, there is nothing new about Congressional restrictions on the activities of Legal Services lawyers. They have been piling up almost ever since the legal-services-for-the-poor program was established as part of Lyndon Johnson's war on poverty. But never before has Congress attempted to micro-manage litigation that it has otherwise authorized by dictating the claims and issues that could be raised by a lawyer on behalf of a client.
The Clinton Administration and LSC have challenged the Second Circuit ruling by relying on recent cases that hold that the government is generally free to choose the programs it wishes to fund. The leading case is Rust v. Sullivan, upholding a provision that family planning agencies receiving federal funds cannot counsel patients with regard to abortion.
As the Second Circuit noted, however, by forbidding any challenge to existing welfare laws, the LSC restriction at issue in this case goes well beyond anything upheld in Rust. Citing the Supreme Court's opinion in the Texas flag burning case, Judge Leval wrote that "[t]he strongest protection of the First Amendment's free-speech guarantee goes to the right to criticize government or advocate change in government policy." Therefore, he predicted that "notwithstanding Rust's semantic endorsement of Congress's right to fund one activity to the exclusion of another, the Supreme Court would not approve a grant to study governmental policy, conditioned on the grantee's not criticizing the policy."
Thus, the Circuit seems to have thrown down a well-reasoned gauntlet to Supreme Court doctrine concerning the scope of restrictions on government-funded speech, reminding the High Court that "criticism of official policy is the kind of speech that an oppressive government would be most keen to suppress."
The ACLU still believes that Rust was wrongly decided, especially since it prohibited family-planning counselors from using not just government funds to discuss abortion, but private funds as well. But in the face of Rust we believe it all the more important that government officials not be allowed to use the authority derived from Rust to suppress criticism of government policy itself. And this is especially important in a context in which the prohibition would blatantly interfere with the ability of a lawyer to provide proper representation to a client who has no other access to justice.
Furthermore, as the ACLU's amicus brief argues, the Supreme Court has consistently recognized a critical distinction between cases in which the government itself is deemed the speaker and cases in which the government provides a subsidy to enable private speakers to deliver their own messages. In the latter instance -- such as the University of Virginia student forum case (Rosenberger) -- the government may not skew the terms of the debate by favoring some views over others. Thus, a central question in this case is whether Legal Services lawyers who are suing the government can plausibly be described as speaking on behalf of the government or whether, like all other lawyers, they are ethically bound to speak on behalf of their clients. To us, the answer seems clear. Indeed, Congress thought so as well when it established the Legal Services Corporation and expressly stipulated that "attorneys providing legal assistance must have full freedom to protect the best interests of their clients in keeping with the Code of Professional responsibility, the Canons of Ethics and the high standards of the legal profession."
That principle seems to have been endorsed by the 1998 decision in National Endowment for the Arts v. Finley, where the Court strongly suggested that the government is barred from engaging in invidious viewpoint discrimination when awarding artistic grants because the private artistic expression supported by the NEA is not generally understood as the government's speech.
Thus, Velazquez offers a new opportunity to test the Supreme Court majority's jurisprudence on two subjects of importance to the functioning of a democratic society: the right to criticize government and the right to equal access to justice.