Legal Services Corp. v. Velazquez
Encyclopedia
Legal Services Corp. v. Velazquez, , was a decision of the Supreme Court of the United States
concerning the constitutionality of funding restrictions imposed by the United States Congress
. At issue were restrictions on the Legal Services Corporation
(LSC), a private, non-profit corporation
established by Congress. The restrictions prohibited LSC attorneys from representing clients attempting to amend or challenge existing welfare
law.
The Court ruled that these restrictions violated the free speech
guarantees of the First Amendment to the United States Constitution
. Because LSC facilitated "private" speech—that of its clients—the restrictions did not merely regulate government speech
. Further, the nature of how LSC funds are distributed created a public forum, where the government's ability to regulate speech is highly limited. Because the restrictions excluded attempts to affect only a certain type of law, they could not be considered viewpoint-neutral, and the government is prohibited from making such viewpoint-based restrictions of private speech.
Reactions to the decision were mixed within political circles, with Republicans
and Democrats
disagreeing on the propriety of the decision. In academia, there were more critical responses to the Court's holding. Several journals
published articles that argued that the use of a 'distortion principle' to decide violations of free speech was unreasonable while others wrote that the Court mishandled the interpretation of the law
at issue.
After the case, attempts to remove other restrictions on LSC faltered. Challenges to restrictions on collecting attorney's fees or representing immigrants in deportation proceedings failed because these limitations did not impose a burden on actual speech. The welfare restriction dealt directly with a specific type of argument, while the other restrictions were more administrative and procedural. For these reasons, Velazquez is unique in a line of cases dealing with government subsidies.
(LSC). The purpose of the act was to provide government-funded legal aid to indigent defendants, funded through grants
to regional entities throughout the country. In 1996, Congress amended the act with that year's appropriation bill
to impose restrictions on LSC. Restrictions included prohibitions against filing class action
lawsuits, providing legal assistance to immigrants in particular types of cases, collecting attorney's fees, soliciting clients, providing advocacy training programs, and attempting to reform welfare laws. However, the restrictions affected a small portion of the caseload. The restrictions prohibited LSC from using its funds for actions:
(TANF). Velazquez retained an attorney from an LSC grantee, Bronx Legal Services, to litigate her claim. Bronx Legal Services filed suit in the United States District Court for the Eastern District of New York
seeking a declaration that the provision of the LSC Act against trying to reform welfare laws was unconstitutional under the First Amendment. They argued that there was no way to help Velazquez without challenging the welfare system itself. They sought to challenge the provisions of TANF under which Velazquez lost her benefits. The district court denied an injunction
.
The district court's decision was affirmed in part and reversed in part by the United States Court of Appeals for the Second Circuit
. The Second Circuit unanimously held that the welfare advocacy restriction was unconstitutional, but upheld other restrictions that Bronx Legal Services had challenged. The Second Circuit also rejected the claim that any funding conditions would be illegitimate. The decision to uphold the other restrictions was 2–1. LSC appealed
to the United States Supreme Court, asserting that the Second Circuit was wrong in striking down the welfare advocacy restriction.
Justice Kennedy
delivered the majority opinion
. It distinguish
ed a 1991 Supreme Court case, Rust v. Sullivan
, which upheld a prohibition on federally funded family planning
services from discussing abortion with their patients. The majority reasoned that in Rust, the government was trying to use its funds to express its own message, but the purpose of the LSC Act was to promote a diversity of private views with its funding. The Court said that the government can only issue "content-neutral" conditions on such speech, and that the specific prohibition on welfare reform litigation was viewpoint-based. "If the restriction on speech and legal advice were to stand, the result would be two tiers of cases...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 Court also attacked the fact that the restriction functionally barred attorneys from participating in the courts. Any attorney receiving LSC funding would not be able to litigate welfare claims and therefore prevented certain cases from being filed. "The restriction imposed by the statute here threatens severe impairment of the judicial function...We must be vigilant when Congress imposes rules and conditions which, in effect, insulate its own laws from legitimate judicial challenge."
dissented from the decision of the Court, primarily due to a belief that Rust mandated a ruling upholding the restriction. Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor
and Clarence Thomas
joined Scalia in his dissent
. Scalia wrote, "The LSC Act is a federal subsidy program, not a federal regulatory program...regulations directly restrict speech; subsidies do not." He disagreed with the majority's contention that there was viewpoint discrimination. Scalia was also concerned with dicta within the majority opinion that seemed to him to indicate a "fondness" for the concept of reform through the courts. His dissent argued that the majority's holding was "unprecedented" because it was the first time the government would be limited in trying to advocate its own message.
(R-OK) said, "It'll be on the radar screen for sure...Why are we giving taxpayer money to sue taxpayers?" Those involved in the case also had mixed reactions. The Legal Services Corporation said it would "immediately review [their] regulations and then modify them to adhere to the Court's ruling", which it did quickly after the decision. Burt Neuborne
, the lawyer who argued against the restriction before the Supreme Court, said the ruling "really reads like a First Amendment textbook".
related to other LSC restrictions. Since the Court struck down the limitation, LSC has engaged in welfare reform litigation due to the injunction preventing enforcement of the restriction.
The case provided the basis for other challenges to restrictions imposed on LSC such as bars against lobbying or class action. These challenges were rejected by the Ninth Circuit
and the Second Circuit
in separate suits. The challenges failed because the relevant provisions do not regulate a specific type of advocacy; for example, the restriction on LSC grantees from collecting attorney's fees would not raise a speech issue because there is no speech involved in such a process. The argument raised in these challenges is that the Court articulated a new "conditions" principle in Velazquez—a distortion of speech test—which they argued would require the restrictions to be struck down. Both courts of appeal to have reviewed this claim have rejected this reading of Velazquez. Instead of a distortion of speech test, the decision was based on the application of limited public forum principles; when the government provides funds to an entity, and this funding is trying to encourage a diversity of private views, it must act in a viewpoint-neutral way. Such programs when funded in this manner are treated as a public forum, where the ability of the government to restrict speech is highly limited.
The implications of these subsequent rulings mandate two new rules, one narrow and one broad. First, restrictions may be imposed on LSC so long as they do not discriminate on the basis of "viewpoint" or "opinion". Because the other restrictions are not based on viewpoint, they were upheld. Second, on a broader scale, the government may not discriminate against viewpoints in any instance where it is funding a private entity to promote a diversity of views. For this reason, the decision in Velazquez set an important precedent
for how the government may act as a subsidizer and speaker.
article was critical of the decision and attacked the Court's claimed distinction between the speech restriction in Rust and the one on the Legal Services Corporation, writing that there was no functional difference between the two. Further, the article highlighted a problem with the Court's interpretation of the statute
's purpose at hand, stating that "Even assuming the propriety of invoking legislative purpose in statutory interpretation, the text of the [Act] does not support the Court's understanding of the Act's purpose." The article noted that while the Court did look at a section of the Act discussing attorneys "protecting the best interest of their clients", the same section noted that the program must be free of "political pressures". Because a factor in the Court's reasoning was its understanding of the Act's purpose, this alleged error purportedly misguided the rest of the Court's analysis.
Further criticism from the article was that the Court unduly rested its decision on a separation of powers
determination. The Court held in Velazquez that the restriction on welfare advocacy cases disrupted the "vital relationship between the bar and the judiciary". This finding, the article argued, is baseless because there is no connection between preventing some government lawyers from arguing a single point and the deprivation of due process
rights. It concluded that the fundamental problems of statutory interpretation and a lack of a credible distinction with Rust in Justice Kennedy's analysis renders the opinion "uncredible" and "unconvincing."
An article in the Maryland Law Review authored by Christopher Gozdor, a lawyer in the Maryland Attorney General's office, was also critical of the decision, though it was instead concerned with an alleged lack of clarity in the majority opinion
. It discussed the case law relating to government speech
and examined what it described as the "Conditions doctrine" where certain conditions on receiving federal funds were upheld or struck down
. The article then turned to the Rust distinction. Gozdor explained: "The Court distinguished Velazquez from Rust because Rust involved a subsidy to facilitate private expression of the government's message, while Velazquez involved LSC funding that was designed [for] private speech." The critical question for the court was the characterization of the speech that the law promoted. Because advocacy by LSC grantees to change welfare laws was not in advance of the government's own message, the restriction placed on it essentially prohibited a form of private speech. The relationship, Gozdor asserted, that the Court set forth, was that the restriction 'distorted' private speech. This 'distortion principle' was the main criticism of the article as well as Scalia's dissent. Adopting part of Scalia's dissent, Gozdor wrote that the restriction did not create such a distortion of private speech because Congress had still permitted LSC to form affiliate organizations which would be considered "legally separate". Notwithstanding the difficulty of an organization to classify itself as an 'affiliate entity' of LSC, Gozdor argued that there was no real prevention of speech when there were ample alternative means of relaying the message.
Moreover, attacking the distortion principle's application, Gozdor also argued against the principle as a legal concept
in the first place. He wrote, "Regardless of the Court's rationale for its distortion principle, determining a First Amendment violation by measuring whether the government used a subsidy 'in ways which distorted the medium's usual functioning' suggests that forum functions become unchangeable once created." He claimed unworkability of the distortion principle through a hypothetical example which would moot the entire existence of the Legal Services Corporation. "Taking the Velazquez rationale to its logical ends", he wrote, "the LSC subsidy itself could become an unconstitutional speech restriction. If Congress substantially increased LSC appropriations in order to allow LSC to take all of its cases...the functioning of the legal system would be distorted because such a subsidy likely would result in a dramatic increase in the federal courts
' caseloads." With this understanding in mind, he concluded with a process by which the Court should have decided the case: a process leading to the upholding of the restriction by finding that LSC's purpose was in promoting the government's message in contrast to a diversity of private views.
An article in the North Carolina Law Review
argued that Kennedy's majority opinion wrongly set forth the understanding of the role of the attorney. The author, Jessica Sharpe, criticized the Court's thesis that the role of the attorney is that of an advocate such that a restriction on the attorney served as a direct restriction of advocacy. This rationale, Sharpe argued, could undermine abortion law because state restrictions on abortion access also could be seen as an intrusion
into doctor-patient speech. Because Velazquez "blurred" this distinction, the privileged nature of doctor-patient conversations could be subjected to future regulations and limitations.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
concerning the constitutionality of funding restrictions imposed by the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
. At issue were restrictions on the Legal Services Corporation
Legal Services Corporation
The Legal Services Corporation is a private, non-profit corporation established by the United States Congress. It seeks to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it...
(LSC), a private, non-profit corporation
Nonprofit organization
Nonprofit organization is neither a legal nor technical definition but generally refers to an organization that uses surplus revenues to achieve its goals, rather than distributing them as profit or dividends...
established by Congress. The restrictions prohibited LSC attorneys from representing clients attempting to amend or challenge existing welfare
Welfare
Welfare refers to a broad discourse which may hold certain implications regarding the provision of a minimal level of wellbeing and social support for all citizens without the stigma of charity. This is termed "social solidarity"...
law.
The Court ruled that these restrictions violated the free speech
Freedom of speech in the United States
Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws, with the exception of obscenity, defamation, incitement to riot, and fighting words, as well as harassment, privileged...
guarantees of the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. Because LSC facilitated "private" speech—that of its clients—the restrictions did not merely regulate government speech
Government speech
The government speech doctrine, in American Constitutional Law, deals with speech made by the government. The doctrine says that the government need not maintain viewpoint neutrality in its own speech, broadly defined...
. Further, the nature of how LSC funds are distributed created a public forum, where the government's ability to regulate speech is highly limited. Because the restrictions excluded attempts to affect only a certain type of law, they could not be considered viewpoint-neutral, and the government is prohibited from making such viewpoint-based restrictions of private speech.
Reactions to the decision were mixed within political circles, with Republicans
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
and Democrats
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
disagreeing on the propriety of the decision. In academia, there were more critical responses to the Court's holding. Several journals
Law review
A law review is a scholarly journal focusing on legal issues, normally published by an organization of students at a law school or through a bar association...
published articles that argued that the use of a 'distortion principle' to decide violations of free speech was unreasonable while others wrote that the Court mishandled the interpretation of the law
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
at issue.
After the case, attempts to remove other restrictions on LSC faltered. Challenges to restrictions on collecting attorney's fees or representing immigrants in deportation proceedings failed because these limitations did not impose a burden on actual speech. The welfare restriction dealt directly with a specific type of argument, while the other restrictions were more administrative and procedural. For these reasons, Velazquez is unique in a line of cases dealing with government subsidies.
Legal Services Corporation
In 1974, the United States Congress passed the Legal Services Corporation Act which established the Legal Services CorporationLegal Services Corporation
The Legal Services Corporation is a private, non-profit corporation established by the United States Congress. It seeks to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it...
(LSC). The purpose of the act was to provide government-funded legal aid to indigent defendants, funded through grants
Grant (money)
Grants are funds disbursed by one party , often a Government Department, Corporation, Foundation or Trust, to a recipient, often a nonprofit entity, educational institution, business or an individual. In order to receive a grant, some form of "Grant Writing" often referred to as either a proposal...
to regional entities throughout the country. In 1996, Congress amended the act with that year's appropriation bill
Appropriation bill
An appropriation bill or running bill is a legislative motion which authorizes the government to spend money. It is a bill that sets money aside for specific spending...
to impose restrictions on LSC. Restrictions included prohibitions against filing class action
Class action
In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued...
lawsuits, providing legal assistance to immigrants in particular types of cases, collecting attorney's fees, soliciting clients, providing advocacy training programs, and attempting to reform welfare laws. However, the restrictions affected a small portion of the caseload. The restrictions prohibited LSC from using its funds for actions:
...initiating legal representation or participating in any other way, in litigation, lobbyingLobbyingLobbying is the act of attempting to influence decisions made by officials in the government, most often legislators or members of regulatory agencies. Lobbying is done by various people or groups, from private-sector individuals or corporations, fellow legislators or government officials, or...
, or rulemakingRulemakingIn administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
, 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 welfare law in effect on the date of the initiation of the representation.
Lower court proceedings
In 1997, Carmen Velazquez lost welfare benefits from the government under the provisions of the Temporary Assistance for Needy Families ActTemporary Assistance for Needy Families
Temporary Assistance for Needy Families is one of the United States of America's federal assistance programs. It began on July 2, 1997, and succeeded the Aid to Families with Dependent Children program, providing cash assistance to indigent American families with dependent children through the...
(TANF). Velazquez retained an attorney from an LSC grantee, Bronx Legal Services, to litigate her claim. Bronx Legal Services filed suit in the United States District Court for the Eastern District of New York
United States District Court for the Eastern District of New York
The United States District Court for the Eastern District of New York is the federal district court whose jurisdiction comprises the entirety of Long Island and Staten Island...
seeking a declaration that the provision of the LSC Act against trying to reform welfare laws was unconstitutional under the First Amendment. They argued that there was no way to help Velazquez without challenging the welfare system itself. They sought to challenge the provisions of TANF under which Velazquez lost her benefits. The district court denied an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
.
The district court's decision was affirmed in part and reversed in part by the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
. The Second Circuit unanimously held that the welfare advocacy restriction was unconstitutional, but upheld other restrictions that Bronx Legal Services had challenged. The Second Circuit also rejected the claim that any funding conditions would be illegitimate. The decision to uphold the other restrictions was 2–1. LSC appealed
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to the United States Supreme Court, asserting that the Second Circuit was wrong in striking down the welfare advocacy restriction.
Supreme Court decision
The Supreme Court heard oral arguments in the appeal on October 4, 2000 and issued its decision four months later. The Court affirmed the decision of the Second Circuit Court of Appeals and ruled the restriction on pursuing welfare reform unconstitutional under the First Amendment by a vote of 5–4.Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
delivered the majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
. It distinguish
Distinguish
In law, to distinguish a case means to contrast the facts of the case before the court from the facts of a case of precedent where there is an apparent similarity. By successfully distinguishing a case, the holding or legal reasoning of the earlier case will either not apply or will be limited...
ed a 1991 Supreme Court case, Rust v. Sullivan
Rust v. Sullivan
Rust v. Sullivan, , was a United States Supreme Court case decided in 1991. The case concerned the legality and constitutionality of Department of Health and Human Services regulations on the use of funds spent by the U.S. federal government to promote family planning...
, which upheld a prohibition on federally funded family planning
Family planning
Family planning is the planning of when to have children, and the use of birth control and other techniques to implement such plans. Other techniques commonly used include sexuality education, prevention and management of sexually transmitted infections, pre-conception counseling and...
services from discussing abortion with their patients. The majority reasoned that in Rust, the government was trying to use its funds to express its own message, but the purpose of the LSC Act was to promote a diversity of private views with its funding. The Court said that the government can only issue "content-neutral" conditions on such speech, and that the specific prohibition on welfare reform litigation was viewpoint-based. "If the restriction on speech and legal advice were to stand, the result would be two tiers of cases...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 Court also attacked the fact that the restriction functionally barred attorneys from participating in the courts. Any attorney receiving LSC funding would not be able to litigate welfare claims and therefore prevented certain cases from being filed. "The restriction imposed by the statute here threatens severe impairment of the judicial function...We must be vigilant when Congress imposes rules and conditions which, in effect, insulate its own laws from legitimate judicial challenge."
Dissent
Justice ScaliaAntonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
dissented from the decision of the Court, primarily due to a belief that Rust mandated a ruling upholding the restriction. Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
and Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
joined Scalia in his dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
. Scalia wrote, "The LSC Act is a federal subsidy program, not a federal regulatory program...regulations directly restrict speech; subsidies do not." He disagreed with the majority's contention that there was viewpoint discrimination. Scalia was also concerned with dicta within the majority opinion that seemed to him to indicate a "fondness" for the concept of reform through the courts. His dissent argued that the majority's holding was "unprecedented" because it was the first time the government would be limited in trying to advocate its own message.
Reaction
The immediate reaction was mixed, especially among members of Congress. Supporters of the ruling were cautiously optimistic, stating that while they were glad the restriction fell, "[the decision] opens the LSC up to even more attacks". Republicans in Congress condemned the decision and agreed to try to work against it. Representative Steve LargentSteve Largent
Steven Michael "Steve" Largent is a retired American football player, enshrined in the Pro Football Hall of Fame, and a former U.S. Congressman, having served in the U.S. House of Representatives for Oklahoma from 1994 until 2002...
(R-OK) said, "It'll be on the radar screen for sure...Why are we giving taxpayer money to sue taxpayers?" Those involved in the case also had mixed reactions. The Legal Services Corporation said it would "immediately review [their] regulations and then modify them to adhere to the Court's ruling", which it did quickly after the decision. Burt Neuborne
Burt Neuborne
Burt Neuborne is a nationally renowned civil liberties defender. Professor Neuborne has acted as lead counsel in the recent Holocaust Litigation against the Swiss Banks. A former National Legal Director of the American Civil Liberties Union, he is currently on the faculty of New York University...
, the lawyer who argued against the restriction before the Supreme Court, said the ruling "really reads like a First Amendment textbook".
Subsequent developments
In the weeks following the Velazquez decision, the Supreme Court rejected appealsCertiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
related to other LSC restrictions. Since the Court struck down the limitation, LSC has engaged in welfare reform litigation due to the injunction preventing enforcement of the restriction.
The case provided the basis for other challenges to restrictions imposed on LSC such as bars against lobbying or class action. These challenges were rejected by the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
and the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
in separate suits. The challenges failed because the relevant provisions do not regulate a specific type of advocacy; for example, the restriction on LSC grantees from collecting attorney's fees would not raise a speech issue because there is no speech involved in such a process. The argument raised in these challenges is that the Court articulated a new "conditions" principle in Velazquez—a distortion of speech test—which they argued would require the restrictions to be struck down. Both courts of appeal to have reviewed this claim have rejected this reading of Velazquez. Instead of a distortion of speech test, the decision was based on the application of limited public forum principles; when the government provides funds to an entity, and this funding is trying to encourage a diversity of private views, it must act in a viewpoint-neutral way. Such programs when funded in this manner are treated as a public forum, where the ability of the government to restrict speech is highly limited.
The implications of these subsequent rulings mandate two new rules, one narrow and one broad. First, restrictions may be imposed on LSC so long as they do not discriminate on the basis of "viewpoint" or "opinion". Because the other restrictions are not based on viewpoint, they were upheld. Second, on a broader scale, the government may not discriminate against viewpoints in any instance where it is funding a private entity to promote a diversity of views. For this reason, the decision in Velazquez set an important precedent
Binding precedent
In law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of...
for how the government may act as a subsidizer and speaker.
Analysis and commentary
A Journal of Law and PoliticsJournal of Law and Politics
The Journal of Law & Politics was founded in 1982 by students at the University of Virginia School of Law. Among the faculty advisers supporting the Journal were then-professor and current Supreme Court Justice Antonin Scalia. The journal publishes scholarly articles and essays from academic...
article was critical of the decision and attacked the Court's claimed distinction between the speech restriction in Rust and the one on the Legal Services Corporation, writing that there was no functional difference between the two. Further, the article highlighted a problem with the Court's interpretation of the statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
's purpose at hand, stating that "Even assuming the propriety of invoking legislative purpose in statutory interpretation, the text of the [Act] does not support the Court's understanding of the Act's purpose." The article noted that while the Court did look at a section of the Act discussing attorneys "protecting the best interest of their clients", the same section noted that the program must be free of "political pressures". Because a factor in the Court's reasoning was its understanding of the Act's purpose, this alleged error purportedly misguided the rest of the Court's analysis.
Further criticism from the article was that the Court unduly rested its decision on a separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
determination. The Court held in Velazquez that the restriction on welfare advocacy cases disrupted the "vital relationship between the bar and the judiciary". This finding, the article argued, is baseless because there is no connection between preventing some government lawyers from arguing a single point and the deprivation of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
rights. It concluded that the fundamental problems of statutory interpretation and a lack of a credible distinction with Rust in Justice Kennedy's analysis renders the opinion "uncredible" and "unconvincing."
An article in the Maryland Law Review authored by Christopher Gozdor, a lawyer in the Maryland Attorney General's office, was also critical of the decision, though it was instead concerned with an alleged lack of clarity in the majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
. It discussed the case law relating to government speech
Government speech
The government speech doctrine, in American Constitutional Law, deals with speech made by the government. The doctrine says that the government need not maintain viewpoint neutrality in its own speech, broadly defined...
and examined what it described as the "Conditions doctrine" where certain conditions on receiving federal funds were upheld or struck down
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. The article then turned to the Rust distinction. Gozdor explained: "The Court distinguished Velazquez from Rust because Rust involved a subsidy to facilitate private expression of the government's message, while Velazquez involved LSC funding that was designed [for] private speech." The critical question for the court was the characterization of the speech that the law promoted. Because advocacy by LSC grantees to change welfare laws was not in advance of the government's own message, the restriction placed on it essentially prohibited a form of private speech. The relationship, Gozdor asserted, that the Court set forth, was that the restriction 'distorted' private speech. This 'distortion principle' was the main criticism of the article as well as Scalia's dissent. Adopting part of Scalia's dissent, Gozdor wrote that the restriction did not create such a distortion of private speech because Congress had still permitted LSC to form affiliate organizations which would be considered "legally separate". Notwithstanding the difficulty of an organization to classify itself as an 'affiliate entity' of LSC, Gozdor argued that there was no real prevention of speech when there were ample alternative means of relaying the message.
Moreover, attacking the distortion principle's application, Gozdor also argued against the principle as a legal concept
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
in the first place. He wrote, "Regardless of the Court's rationale for its distortion principle, determining a First Amendment violation by measuring whether the government used a subsidy 'in ways which distorted the medium's usual functioning' suggests that forum functions become unchangeable once created." He claimed unworkability of the distortion principle through a hypothetical example which would moot the entire existence of the Legal Services Corporation. "Taking the Velazquez rationale to its logical ends", he wrote, "the LSC subsidy itself could become an unconstitutional speech restriction. If Congress substantially increased LSC appropriations in order to allow LSC to take all of its cases...the functioning of the legal system would be distorted because such a subsidy likely would result in a dramatic increase in the federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
' caseloads." With this understanding in mind, he concluded with a process by which the Court should have decided the case: a process leading to the upholding of the restriction by finding that LSC's purpose was in promoting the government's message in contrast to a diversity of private views.
An article in the North Carolina Law Review
North Carolina Law Review
The North Carolina Law Review is the law journal of the University of North Carolina School of Law. It was established in 1922 and is published in six issues each year, with issue 5 devoted to its annual symposium and issue 6 designated as a special review of North Carolina and Fourth Circuit law...
argued that Kennedy's majority opinion wrongly set forth the understanding of the role of the attorney. The author, Jessica Sharpe, criticized the Court's thesis that the role of the attorney is that of an advocate such that a restriction on the attorney served as a direct restriction of advocacy. This rationale, Sharpe argued, could undermine abortion law because state restrictions on abortion access also could be seen as an intrusion
Planned Parenthood v. Casey
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion were challenged...
into doctor-patient speech. Because Velazquez "blurred" this distinction, the privileged nature of doctor-patient conversations could be subjected to future regulations and limitations.
See also
- Rosenberger v. RectorRosenberger v. University of VirginiaRosenberger v. Rector and Visitors of the University of Virginia, , was an opinion by the Supreme Court of the United States regarding whether a state university might, consistently with the First Amendment, withhold from student religious publications funding provided to similar secular student...
- Legal meaning of 'Forum'Forum (legal)A public forum is a United States constitutional law term that describes a government-owned property that is open to public expression and assembly.-Types:Forums are classified as public or nonpublic....