Legal Servs. Corp. v Velazquez (2001)

Funding restrictions imposed by Congress prohibiting LSC attorneys from representing clients attempting to amend (or challenge) existing welfare law violated First Amendment guarantees of free speech because LSC’s regulations were viewpoint-based restrictions of private speech.

Citation: 531 U.S. 533 (2001)
Date decided: Feb 21, 2001
Longer case name: Legal Services Corporation v. Velazquez et al.
Law type: Civil
Jurisdiction level:Federal
State of origin: New York
Topic(s):Freedom of speech, LSC: General, and LSC: Restrictions
Lists:Important cases
Attorneys:Bronx Legal Services, on behalf of Velazquez, filed suit in the United States District Court for the Eastern District of New York. Alan Levine argued the cause for petitioner in No. 99-603. With him on the briefs was Stephen L. Ascher. Burt Neuborne (American Civil Liberties Union, ACLU) argued the cause for respondents in both cases. With him on the brief were Laura K. Abel, Kimani Paul-Emile, Paul K. Sonn, David S. Udell, Peter M. Fishbein, and Alan E. Rothman. Neuborne is the Norman Dorsen Professor of Civil Liberties at NYU School of Law. He was the founding legal director of the Brennan Center for Justice and directed its legal program from 1995 to 2007.
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Case Importance

Though LSC lost, the case was a win. Burt Neuborne, the lawyer who argued against the restriction before the US Supreme Court, said the ruling “really reads like a First Amendment textbook”. From Wikipedia: In the weeks following the Velazquez decision, the Supreme Court rejected appeals related to other LSC restrictions. LSC has engaged in welfare-reform litigation since the original injunction was lifted. The case provided the basis for other challenges to restrictions imposed on LSC, such as bans 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 was 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 reviewing 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’s purpose was to encourage a diversity of private views, it must act in a viewpoint-neutral way.[24] Programs 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 mandated 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”.[25] Because the other restrictions were 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 subsidizer and speaker.

Case Details

(The syllabus is not part of the opinion, but is a summary prepared by the court reporter as a convenience.)



The Legal Services Corporation Act authorizes petitioner Legal Services Corporation (LSC) to distribute funds appropriated by Congress to local grantee organizations providing free legal assistance to indigent clients in, inter alia, welfare benefits claims. In every annual appropriations Act since 1996, Congress has prohibited LSC funding of any organization that represented clients in an effort to amend or otherwise challenge existing welfare law. Grantees cannot continue representation in a welfare matter even where a constitutional or statutory validity challenge becomes apparent after representation is well under way. Respondents-lawyers employed by LSC grantees, together with others filed suit to declare, inter alia, the restriction invalid. The District Court denied them a preliminary injunction, but the Second Circuit invalidated the restriction, finding it impermissible viewpoint discrimination that violated the First Amendment.

Held: The funding restriction violates the First Amendment.

(a) LSC and the Government, also a petitioner, claim that Rust v. Sullivan, 500 U. S. 173, in which this Court upheld a restriction prohibiting doctors employed by federally funded family planning clinics from discussing abortion with their patients, supports the restriction here. However, the Court has since explained that the Rust counseling activities amounted to governmental speech, sustaining viewpoint-based funding decisions in instances in which the government is itself the speaker, see Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217,229,235, or instances, like Rust, in which the government uses private speakers to transmit information pertaining to its own program, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833. Although the government has the latitude to ensure that its own message is being delivered, neither that latitude nor its rationale applies to subsidies for private speech in every instance. Like the Rosenberger

*Together with No. 99-960, United States v. Velazquez et al., also on certiorari to the same court program, the LSC program was designed to facilitate private speech, not to promote a governmental message. An LSC attorney speaks on behalf of a private, indigent client in a welfare benefits claim, while the Government’s message is delivered by the attorney defending the benefits decision. The attorney’s advice to the client and advocacy to the courts cannot be classified as governmental speech even under a generous understanding of that concept. In this vital respect this suit is distinguishable from Rust. Pp. 540-543.

(b) The private nature of the instant speech, and the extent of LSC’s regulation of private expression, are indicated further by the circumstance that the Government seeks to control an existing medium of expression in ways which distort its usual functioning. Cases involving a limited forum, though not controlling, provide instruction for evaluating restrictions in governmental subsidies. Here the program presumes that private, nongovernmental speech is necessary, and a substantial restriction is placed upon that speech. By providing subsidies to LSC, the Government seeks to facilitate suits for benefits by using the State and Federal Judiciaries and the independent bar on which they depend for the proper performance of their duties and responsibilities. Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the attorneys’ traditional role in much the same way broadcast systems or student publication networks were changed in the limited forum cases of Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666, and Rosenberger v. Rector and Visitors of Univ. of Va., supra. The Government may not design a subsidy to effect such a serious and fundamental restriction on the advocacy of attorneys and the functioning of the judiciary. An informed, independent judiciary presumes an informed, independent bar. However, the instant restriction prevents LSC attorneys from advising the courts of serious statutory validity questions. It also threatens severe impairment of the judicial function by sifting out cases presenting constitutional challenges in order to insulate the Government’s laws from judicial inquiry. The result of this restriction would be two tiers of cases. There would be lingering doubt whether an LSC attorney’s truncated representation had resulted in complete analysis of the case, full advice to the client, and proper presentation to the court; and the courts and the public would come to question the adequacy and fairness of professional representations when the attorney avoided all reference to statutory validity and constitutional authority questions. A scheme so inconsistent with accepted separation-of-powers principles is an insufficient basis to sustain or uphold the restriction on speech. Pp. 543-546

Last modified: 2022-12-27 12:51
Case internal grade: A | Case internal status: OK |
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