Legal Services Corp. v. Velazquez,
531 U.S. 533 (2001)

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No. 99-603. Argued October 4, 2000-Decided February 28, 2001 *

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 othersfiled 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.

Full Text of Opinion

Primary Holding

Under the First Amendment, a federal legal aid funding organization cannot withhold funding from an organization that represents indigent clients in trying to challenge welfare laws.


The Legal Services Corporation was designed to distribute funds obtained by Congress to local organizations that offered free legal representation to indigent individuals. LSC was a non-profit, and its use of funds was conditioned under a 1996 law on its refraining from supporting an organization that represented clients in an attempt to challenge existing welfare laws. The government viewed this statute as a ban on representing clients in a welfare matter once a constitutional or statutory validity challenge emerged, even if representation already had started. In general, lawyers who received these funds were prohibited from arguing that state and federal laws conflict or that a state or federal is unconstitutional.

The statute did not prevent them from claiming that an existing statute was misinterpreted or misapplied, or that an incorrect factual determination had been made. Lawyers who worked for organizations that received LSC funds argued that these conditions violated the First Amendment. They received a preliminary injunction from the Second Circuit.



  • Anthony M. Kennedy (Author)
  • John Paul Stevens
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

If the government is the speaker, or if it uses private speakers to convey information related to its own programs, Congress may enact viewpoint-based conditions on funding because this is essentially governmental speech. However, subsidies for private speech are not always subject to the same rules, and this program was intended to facilitate private speech rather than communicating information about the government. Welfare hearings pit the government against the clients of these lawyers in an adversarial setting, so the speech of the lawyers representing their clients cannot be classified as governmental speech.

Restrictions on subsidies from the government may be viewed through the lens of cases on limited forums, even though this is an imperfect analogy. In requiring the attorneys to limit their arguments to certain areas, the court undermines the function of the legal system by depriving the attorneys of their right to make all of the available arguments on behalf of their clients, as is required by their duty of zealous representation. The court system relies on the ability of attorneys on both sides to make independent, informed legal arguments that the court can weigh in a neutral fashion. The funding condition may prevent some cases that rely on constitutional or statutory challenges from ever being heard, which interferes with the judiciary's authority. Under the system, both courts and the public would be unsure of whether an attorney had fully presented a client's case and asserted the client's rights as is needed in an adversary proceeding. Serious fairness concerns arise, as well as issues regarding the separation of powers.

While the LSC attorneys can withdraw their representation, this is not an adequate countermeasure because an indigent client may struggle to find other lawyers to represent him. Knowledgeable representation is critical to fully protect a client's rights. In any event, the legislative branch may not impose its interpretation of the Constitution on the courts, even if it provides some perfunctory alternatives.


  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Sandra Day O'Connor
  • Clarence Thomas

The decision in Rust v. Sullivan (1991) should control. The program discussed there placed conditions on government funding for doctors, requiring that they refrain from discussing abortion with their patients. The obligation of doctors to serve their patients is parallel to the obligation of lawyers to serve their clients, and the speech of the doctors cannot be properly classified as governmental speech. The First Amendment has not been applied to strike down restrictions on government funding that distorts an existing medium of expression, as long as it does not curtail speech.

The main difference between the cases is that patients in Rust had a more realistic alternative if they wanted to discuss an abortion with a doctor. Here, however, some clients admittedly may not be able to have legal representation. This disparate effect should not determine the outcome of a First Amendment claim, since it is based on the relationship between the government and the lawyers rather than between the lawyers and the clients.

Case Commentary

The inconsistencies in this area of jurisprudence, regarding what restrictions Congress can place on what is done with its money, suggest that the Court considers each case specifically with close attention to its individual facts. There does not seem to be any general rule that can be applied about whether conditions attached to funding will be upheld or found unconstitutional.

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