Legal Services Corp. v. Velazquez | |
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Argued October 4, 2000 Decided February 28, 2001 | |
Full case name | Legal Services Corporation v. Carmen Velazquez, et al. |
Citations | 531 U.S. 533 (more) |
Case history | |
Prior | Plaintiffs' motion for injunction denied, 985 F. Supp. 323 (E.D.N.Y. 1997); aff'd in part, rev'd in part, 164 F.3d 757 (2d Cir. 1999) |
Subsequent | Permanent injunction granted |
Holding | |
Because the LSC facilitates private speech, the government speech doctrine does not apply and the speech restriction is therefore unconstitutionally viewpoint-based. | |
Court membership | |
| |
Case opinions | |
Majority | Kennedy, joined by Stevens, Souter, Ginsburg, Breyer |
Dissent | Scalia, joined by Rehnquist, O'Connor, Thomas |
Laws applied | |
U.S. Const. amend. I; 42 U.S.C. § 2996e(d)(4) |
Legal Services Corp. v. Velazquez, 531 U.S. 535 (2001), 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 the Legal Services Corporation 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 only excluded attempts to affect a certain kind of law, they could not be considered viewpoint-neutral, and the Government could not make such a viewpoint-based restriction of private speech in that context.
Reactions to the decision were mixed within political circles. Republicans who had originally passed the restrictions in 1996 stated their disagreement with the decision while Democrats generally supported the ruling. In academia, there were more critical responses to the court's holding that the restriction was unconstitutional. Several journals published articles arguing 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 the LSC faltered. Challenges to restrictions, like the bar on collecting attorney's fees or representing immigrants in deportation proceedings, failed because these other limitations did not impose a burden on actual speech. The specific welfare restriction dealt directly with a type of argument employed in cases, while the other restrictions were more administrative and procedural. For these reasons, Velazquez is unique in a line of cases dealing with government subsidies.
Background
Legal Services Corporation
In 1974, Congress passed the Legal Services Corporation Act which established the LSC. The purpose of the act was to issue government-funded legal aid to indigent defendants through grants to regional entities across the country. In 1996, Congress amended the act through the year's appropriation bill to impose restrictions on the activities of the Legal Services Corporation. Restrictions included bars against bringing class action lawsuits, some legal assistance to immigrants, trying to get attorney's fees, client solicitation, advocacy training programs, and seeking to reform welfare laws.[1] However, the restrictions only affected a small portion of the caseload.[2] Relevantly, the restriction prevented usage of LSC funds for actions:
...initiating legal representation or participating in any other way, in litigation, lobbying, or rulemaking, 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.[3]
Lower court proceedings
Carmen Velazquez lost welfare benefits from the government under the provisions of the Temporary Assistance for Needy Families Act (TANF). Velazquez retained an attorney from an LSC grantee to litigate this claim.[4] The attorney and other lawyers with the LSC grantee, 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.[4] This is because they sought to challenge provisions of TANF under which Velazquez lost her benefits. The district court denied an injunction. This was later affirmed in part and reversed in part by the United States Court of Appeals for the Second Circuit; it upheld other restrictions that were challenged but held that the welfare advocacy restriction was unconstitutional.[5] The Legal Services Corporation appealed 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, before issuing their decision four months later.[6] The ruling split the justices 5–4 in favor of affirming the decision of the Second Circuit Court of Appeals and finding the restriction on pursuing welfare reform unconstitutional under the First Amendment.
![Justice Kennedy](https://upload.wikimedia.org/wikipedia/commons/thumb/d/dc/Anthony_Kennedy_Official.jpg/120px-Anthony_Kennedy_Official.jpg)
Justice Kennedy delivered the majority's opinion. It distinguished a 1991 Supreme Court case, Rust v. Sullivan, which had upheld a prohibition on funds for family planning services which discussed abortion with their patients in federally funded clinics. Kennedy reasoned that in Rust, the government was trying to use its funds to express its own message, while in the present matter, the purpose of the LSC Act was to promote a diversity of private views with its funding. Kennedy held that the government can only issue "content-neutral" conditions on such speech,[7] 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."[8]
The court also attacked the fact that the restriction functionally barred participation of attorneys in the courts, as an effect of preventing 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".[9]
Dissent
Justice Scalia dissented from the decision of the court, primarily believing that Rust mandated a ruling upholding the restriction. He was joined in his dissent by Justices Clarence Thomas, Sandra Day O'Connor and Chief Justice William H. Rehnquist. Scalia wrote, "The LSC Act is a federal subsidy program, not a federal regulatory program...regulations directly restrict speech; subsidies do not."[10] He disagreed with the majority's contention that there was viewpoint discrimination. Scalia also took concern with the dicta within the majority opinion that seemed to him to indicate a "fondness" for the concept of reform through the courts.[11] He concluded by writing 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.[10]
Reaction
The immediate reaction was mixed, especially among members of Congress.[12] 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".[12] Republicans in Congress condemned the decision and agreed to try to work against it. Representative Steve Largent (R-OK) said, "It'll be on the radar screen for sure...why are we giving taxpayer money to sue taxpayers?"[12]
Those involved in the case also had mixed reactions. The Legal Services Corporation said they would "immediately review our regulations and then modify them to adhere to the Court's ruling", which they did quickly after the decision.[9] The lawyer who argued against the restriction said the ruling "really reads like a First Amendment textbook".[9]
Subsequent developments
In the weeks following the Velazquez decision, the Supreme Court rejected appeals on other LSC restrictions.[13] Since the Court struck down the limitation, the LSC has been able to engage in welfare reform litigation by virtue of the injunction against the restriction. This case has provided the basis for challenging other restrictions imposed on the LSC such as bars against lobbying or class actions,[14] challenges which failed.[15][16] These challenges failed because the newly disputed 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. This means that when the government is providing funds to an entity, and this funding is trying to encourage a diversity of private views, it must act in a viewpoint-neutral way.[17] 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 thus mandates two new rules, one narrow and one broad. Firstly, restrictions had been imposed on the LSC so long as they did not discriminate on the basis of "viewpoint" or "opinion"[18] (because the other restrictions were not based on viewpoint, they were upheld). On a broader scale, this means that the government cannot 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 acts as subsidizer and speaker.[19]
Analysis and commentary
A Journal of Law and Politics article was critical of the decision, attacking 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.[20] 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."[21] 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".[3][22] Because a factor in the Court's reasoning was its understanding of the Act's purpose[23], this alleged error was claimed to misguide the rest of the Court's analysis.
Another criticism from the article is that the Court unduly rested its decision on a separation of powers determination.[24] The Court held in Velazquez that the restriction on welfare advocacy cases disrupted the "vital relationship between the bar and the judiciary".[25] 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.[26] 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."[27]
An article in the Maryland Law Review was also critical of the decision, though it drew its concern with an alleged lack of clarity in the majority opinion. It first went through the case law relating to Government speech. It examined what it described as the "Conditions doctrine"[28] where certain conditions on receiving federal funds were upheld or struck down. The article then turned to the Rust distinction. Gozdor, the article's writer, 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."[29][30] The critical question for the court was the characterisation 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.[10][31] 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 the LSC to form affiliate organizations which would be considered "legally separate".[32] Notwithstanding the difficulty of an organization to classify itself as an 'affiliate entity' of the LSC, Gozdor argues that there was no real prevention of speech when there were ample alternative means of relaying the message.
Along with attacking the distortion principle's application, Gozdor also argued against the principle as a legal concept in the first place.[33] He writes, "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."[34] He advanced this argument, and his claimed unworkability of the distortion principle, by extending the principle in a hypothetical example which would moot the entire existence of the Legal Services Corporation. "Taking the Velazquez rationale to its logical ends", he writes, "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."[35] 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 the LSC's purpose was in promoting the government's message in contrast to a diversity of private views.
Lastly, 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.[36] The author, Sharpe, criticized the thesis used in the decision 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 argues, 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 subject to future regulation and limitation.[37]
See also
Notes
- ^ MacDonald, Heather "Legal Services Corp. v. Velazquez, Carmen, et al./U.S. v. Velazquez", "Medill News Service", February 28, 2001, accessed December 28, 2010.
- ^ Houseman, Alan W. "What Can and Cannot Be Done: Representation of Clients by LSC-Funded Programs", "Center for Law and Social Policy", August 9, 2001.
- ^ a b U.S.C §2996(1)
- ^ a b "Supreme Court: Welfare Challenges Curb Rejected", World News Digest, February 28, 2001.
- ^ 531 U.S. 535 at 537
- ^ 531 U.S. at 535.
- ^ 531 U.S. at 542.
- ^ 531 U.S. at 546.
- ^ a b c Greenhouse, Linda, "Justices Reject Congress's Curbs on Welfare Suits", New York Times, March 1, 2001.
- ^ a b c 532 U.S. at 557. Scalia, J., dissenting.
- ^ 531 U.S. at 563.
- ^ a b c "Supreme Court Strikes Down Limits on Legal Services Corporations's Suits, Re-Energizing Program's Detractors", Congressional Quarterly Weekly, March 2, 2001.
- ^ "Legal Services Corporations restrictions to stay put; High court denies certiorari over remaining questions", The Indiana Lawyer, April, 25, 2001.
- ^ Schwinn, Steven D. "Ninth Circuit Declines Further Review of Legal Services Funding Restrictions", Constitutional Law Prof Blog, June 4, 2010, accessed January 1, 2011
- ^ 06-36012 (9th Cir.), (dismissing challenge against restrictions)
- ^ 05-0787-cv (2nd Cir.), (dismissing challenge to attorney fee restriction)
- ^ Volokh 2008, pp. 410–412
- ^ Volokh 2008, p. 434
- ^ Volokh 2008, p. 410
- ^ Johnson 2001, p. 355
- ^ Johnson 2001, p. 357
- ^ Johnson 2001, p. 358
- ^ Johnson 2001, p. 360
- ^ Johnson 2001, p. 365
- ^ 531 U.S. 535 at 545-546
- ^ Johnson 2001, p. 367-368
- ^ Johnson 2001, p. 372
- ^ Gozdor 2002, p. 459-467
- ^ Gozdor 2002, p. 467
- ^ 531 U.S. 535 at 541-542.
- ^ Gozdor 2002, p. 471-472
- ^ Gozdor 2002, p. 472
- ^ Gozdor 2002, p. 474
- ^ Gozdor 2002, p. 475
- ^ Gozdor 2002, p. 476
- ^ Sharpe 2002, p. 1324
- ^ Sharpe 2002, p. 1331-1332
References
- Volokh, Eugene (2008). First Amendment and Related Statutes: Problems, Cases and Policy Arguments (3rd ed.). Foundation Press (published 12 May 2008). ISBN 978-1599413389.
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(help) - Johnson, Jay (2001). "Note: The Interaction Between Statutory and Constitutional Arguments in Legal Services Corp. v. Velazquez". Journal of Law and Politics. 17 (1): 353–372.
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(help) - Gozdor, Christopher (2002). "Legal Services Corp. v. Velazquez: A Problematic Commingling of Unconstitutional Conditions and Public Fora Analyses Yields A New Grey Area For Free Speech". Maryland Law Review. 61 (1): 454–481.
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(help) - Sharpe, Jessica (2002). "Legal Services Corp. v. Velazquez: Tightening the Noose on Patients' Rights". North Carolina Law Review. 81 (1): 1312–1332.
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