It is lawyers we are funding: A constitutional challenge to the 1996 restrictions on the Legal Services Corporation

Harvard Civil Rights-Civil Liberties Law Review

Volumn 33, Issue 1, 1998, Pages 106-158

  Roth, Jessica A ^a,b  

^a Southern District of New York ^*  (United States)

^b HARVARD LAW SCHOOL   (United States)

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EID: 11544329176     PISSN: 00178039     EISSN: None     Source Type: Journal    
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References (301)

1. A national legal services program was first created in 1965 as part of the Economic Opportunity Act of 1964. See generally Warren E. George, Development of the Legal Services Corporation, 61 CORNELL L. REV. 681, 682 (1976). The Legal Services Corporation Act of 1974 is the governing statute of the LSC. Pub. L. No. 93-355, 88 Stat. 378 (codified as amended at 42 U.S.C. § 2996 (1994)).
2. The restrictions were incorporated into the appropriations bill, the Omnibus Consolidated Rescissions and Appropriations Act of 1996 ("OCRAA"), Pub. L. No. 104-134, 110 Stat. 1321.
3. See OCRAA § 504(a)(1).
4. See id. § 504(a)(2).
5. See id. § 504(a)(12).
6. See id. § 504(a)(14).
7. See id. § 504(a)(15).
8. See id. § 504(a)(11).
9. See id. § 504(a)(17).
10. See id. § 504(a)(16).
11. See id. § 504(a)(7).
12. See id. § 506.
13. See id. § 504(a)(13).
14. See id, § 504(d)(1). In response to several court rulings finding the restriction on non-federal funds constitutionally suspect, the LSC revised its regulations concerning the use of non-federal funds. See 45 C.ER. § 1610 (1996) (permitting LSC grantees to use non-federal funds for prohibited activities provided that the funds and facilities used to undertake these activities are segregated from federal funds).
15. The first LSC statute prohibited recipients from engaging in litigation relating to abortion, desegregation, selective service and military desertion cases, and criminal proceedings. Participation in class actions was only permitted if the individual lawyers received approval from their program superiors. See 42 U.S.C. § 2996(f)(b)(7)-(10) (1994). See generally Note, Depoliticizing Legal Aid: A Constitutional Analysis of the Legal Services Corporation Act, 61 CORNELL L. REV. 734, 736-39 (1976). The 1974 statute also placed severe restrictions on the ability of LSC lawyers to engage in political activities on their own time as well as in their representative capacities, and forbade LSC offices from becoming involved in any form of political organizing or lobbying efforts. See 42 U.S.C. § 2996(f)(a)(6)(A), (e)(b)(5) (1994).
16. See 142 CONG. REC. H81490-550, H81590-92 (daily ed. July 23, 1996).
17. See David E. Rovella, Legal Aid Lawyers Roll Dice with New Lawsuit, NAT'L L.J., Feb. 19, 1997, at A6 (describing Ken Boehm, former counsel to the LSC board, as characterizing the outcome as "a deal with moderate congressional Republicans last summer, allowing the new funding restrictions in exchange for a smaller LSC budget reduction . . . [t]here really was a quid pro quo . . . .$).
18. The LSC budget was cut to $278 million in 1996, a one-third reduction from its previous budget. See David E. Rovella, Will Court Win Spur GOP Backlash?, NAT'L L.J., Jan. 13, 1997, at A1.
19. In the over two decades since the LSC was created, the majority of the restrictions imposed on funding recipients, including the bans on abortion and desegregation cases, have never been challenged. See Note, The Constitutionality of Excluding Desegregation from the Legal Services Program, 84 COLUM. L. REV. 1630, 1630 (1984). One notable exception to this general reluctance to bring suit is the 1991 challenge to the redistricting restrictions brought in Texas Rural Legal Aid Inc., v. Legal Servs. Corp., 940 F.2d 685 (D.C. Cir. 1991) ("TRLA"). In TRLA, although the plaintiff LSC lawyers argued that the LSC had exceeded its authority by prohibiting redistricting litigation and that the regulations violated their First Amendment rights, the District Court and the Court of Appeals for the District of Columbia reached only the former issue. The court found the LSC to be within its statutory authority. See id. The other exception to the reluctance trend was brought in 1975 immediately after the LSC's creation. The suit challenged one of the original restrictions that prohibited LSC employees from participating in, or encouraging others to participate in, public demonstrations, boycotts, or strikes, on the grounds that the restriction violated the First and Fifth Amendment rights of the LSC grantees, the lawyers, and their clients. See Welfare Rights Org. v. Cramton, Civil No. 75-1938 (D.D.C., filed Nov. 20, 1975) (unpublished material) cited in Note, supra note 15, at 737 n. 17.
20. Outgoing LSC President Alexander D. Forger observed of Burt Neuborne, the NYU law professor who is representing several LSC lawyers challenging the restrictions, "[he] has the luxury of playing Russian roulette," while LSC officials must face the reality of total defunding. Rovella, supra note 18, at A1. See also David E. Rovella, LSC Invites Law Firms to the Legal Services Game, NAT'L L.J., Jan. 27, 1997, at A8 ("The LSC has scolded grantees for thumbing their noses at Congress by continuing to pursue class actions."); Rovella, supra note 17, at A6 (quoting Ken Boehm, former LSC counsel, as saying, if those currently challenging the restrictions "are successful with this lawsuit, they will pull the rug out from under their supporters in Congress").
21. Rovella, supra note 17, at A6.
22. Rovella, supra note 18, at A1.
23. Valerie J. Bogart, one of the lawyers who has challenged the restrictions, argues that "placating LSC opponents is pointless, since 'no understanding exists' between the LSC and Republicans who seek the agency's elimination. '[The LSC] keeps saying there is a contract with Congress . . . . There is no contract. The first thing out of this new Congress will be to zero us out.'" Id.
24. The three lawsuits that have been filed are: Varshavsky v. Geller, No. 40767/91 (N.Y. Sup. Ct. Dec. 24, 1996); Legal Aid Soc'y of Haw. v. Legal Servs. Corp., Civil No. 97-00032 (D. Hawaii Feb. 14, 1997); Velasquez v. Legal Servs. Corp., Civil No. 97-00182 (E.D.N.Y. Jan. 14, 1997).
25. The Varshavsky case challenged the restrictions on the additional ground that they conflicted with the New York State Code of Professional Responsibility. The case was framed as a conditional motion to withdraw by Valerie Bogart, the LSC lawyer who had served as counsel for a certified plaintiff class in a class action against the New York Department of Social Services. Following a preliminary injunction against the Department of Social Services, Ms. Bogart had been involved in monitoring the Department's compliance. She asked the court to clarify whether the new LSC restrictions required her to withdraw from her involvement in that case. Ms. Bogart argued that she should not be required to withdraw, even if the regulations required it. on account of the fact that the regulations were void because they violated the U.S. Constitution and the Code of Professional Responsibility. See Varshavsky, No. 40767/91, slip op. at 2-3.
26. See id. at 20-21, holding sections 504(a)(7) (class actions) and 504(d)(1) (application to non-federal funds) are unconstitutional (but without reaching whether section 504(a)(7) was unconstitutional as applied only to federal funds).
27. See Legal Aid Soc'y of Haw., No. 97-00032, slip op. at 35-36, holding the following provisions of the 1996 Legal Services Corporation Act unconstitutional: § 504(a)(1) (redistricting); § 504(a)(2) (influence of executive orders or agency action); § 504(a)(3) (influence of adjudicatory proceeding); § 504(a)(4) (comprehensive ban on lobbying); § 504(a)(12) (political organizing or educational activities); § 504(a)(14) (abortion); § 504(a)(15) (representation of prisoners); § 504(a)(17) (representation of drug defendants in public housing evictions).
28. 500 U.S. 173 (1991).
29. The Supreme Court has repeatedly held that there is no right to counsel in civil cases. See M.L.B, v. S.L.J., 117 S. Ct. 555, 562 (1996); Lewis v. Casey, 116 S. Ct. 2174, 2181 (1996); Murray v. Giarratano, 492 U.S. 1, 7 (1989).
30. 371 U.S. 415 (1963).
31. Id. at 429.
32. Id.
33. Id.
34. Id.
35. Button, 371 U.S. at 430.
36. Id.
37. See id. at 433.
38. See id.
39. Id.
40. Kenneth L. Karst has described three purposes, "not always distinct in practice," which are commonly identified as central to the First Amendment as follows: "(1) to permit informed choices by citizens in a self-governing democracy, (2) to aid in the search for truth, and (3) to permit each person to develop and exercise his or her capacities, thus promoting the sense of individual self-worth." Kenneth L. Karst, Equality and the First Amendment. 43 U. CHI. L. REV. 20, 23 (1975).
41. 377 U.S. 1 (1964).
42. 389 U.S. 217 (1967).
43. 401 U.S. 576 (1971).
44. Id. at 585.
45. Brotherhood of R.R. Trainmen, 377 U.S. 1, at 8.
46. Id. at 10 (Clark, J., dissenting).
47. Id.
48. United Mine Workers of Am. v. 111. State Bar Ass'n, 389 U.S. 217, 223 (1967) (quoting Thomas v. Collins, 323 U.S. 516, 531 (1945)).
49. 436 U.S. 412 (1978).
50. Id. at 429.
51. W. at 428 (quoting NAACP v. Button, 371 U.S. 415, 429, 431 (1963)).
52. Primus, 436 U.S. at 433 (quoting Button. 371 U.S. at 433).
53. See Primus, 436 U.S. at 432 (quoting Buckley v. Valeo, 424 U.S. 1, 44-45 (1976)).
54. Primus, 436 U.S. at 439.
55. Class actions, as defined by Federal Rule of Civil Procedure 23. did not exist prior to the revision of the federal rules in 1966. Prior to the 1966 revision, claims in which many persons were interested could be brought under Federal Equity Rule 38, which dated to 1912. Federal Equity Rule 38 provided: "When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole." JAMES LOVE HOPKINS, FEDERAL EQUITY RULES (8th ed. 1933), quoted in Arthur R. Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the "Class Action Problem," 92 HARV. L. REV. 664, 669 n.24 (1979).
56. Class actions, as defined by Federal Rule of Civil Procedure 23. did not exist prior to the revision of the federal rules in 1966. Prior to the 1966 revision, claims in which many persons were interested could be brought under Federal Equity Rule 38, which dated to 1912. Federal Equity Rule 38 provided: "When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole." JAMES LOVE HOPKINS, FEDERAL EQUITY RULES (8th ed. 1933), quoted in Arthur R. Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the "Class Action Problem," 92 HARV. L. REV. 664, 669 n.24 (1979).
57. R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1991) (Stevens, J., concurring). Commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression. Finally, "obscenity and fighting words," fill out the lowest tier, receiving "the least protection of all." Id.
58. See generally Cynthia L. Estlund, Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category, 59 GEO. WASH. L. REV. 1 (1990) (discussing the Court's attempts to define "matters of public concern"). Speech that does not overtly touch on government policy, but rather expresses a particular world view or perspective on people and events, is also frequently considered political speech. For example, art is often political in the sense that it implicitly critiques certain policies or offers alternative perspectives. Speech concerning race and religion is frequently political as well, in the sense that views on these subjects inform views about how society should be structured. The line defining where art, for example, turns into obscenity (or where it ceases to be mere entertainment and takes on a political hue), and where expressions on race cross over into fighting words, is inexact. The Court therefore has tended to overestimate the political value of speech, affording it more protection than it may warrant according to a more literal interpretation of "political" speech. See, e.g., Winters v. New York, 333 U.S. 507, 510 (1948) ("The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine."). See also Hustler Magazine v, Falwell, 485 U.S. 46 (1988) (recognizing the political value of even indecent parodies of public figures); FCC v. Pacifica, 438 U.S. 726 (1978); cf. Miller v. California, 413 U.S. 15, 24 (1973) (finding certain pornographic brochures sufficiently lacking in "literary, artistic, political, or scientific value" to warrant regulation).
59. See New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (invoking our nation's "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials"). See also R.A.V., 505 U.S. 377, 421 ("Speech about public officials or matters of public concern receives greater protection than speech about other topics."); FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984).
60. 408 U.S. 92 (1972).
61. Id. at 96 (quoting ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE, 27 (1948)).
62. 447 U.S. 530 (1980).
63. Id. at 537.
64. The Commission argued that it was concerned that allowing the inserts would: (1) force Consolidated Edison's views on a captive audience; (2) prevent the allocation of limited resources in a way better designed to serve the public interest; and (3) force the ratepayers to subsidize the cost of the insert. See id. at 540-41.
65. Id. at 537.
66. Although Consolidated Edison is a regulated utility, the Court found that it was a private party for the purposes of First Amendment analysis, and that the bills sent by the utility represented private, commercial speech. See id. at 534 n.1; see also id. at 539-40 ("Consolidated Edison has not asked to use the offices of the Commission as a forum from which to promulgate its views. Rather, it seeks merely to utilize its own billing envelopes to promulgate its views on controversial issues of public policy."). See Part II.B.3, infra, for an extensive discussion of the significance of the nature of the forum.
67. 485 U.S. 312 (1988).
68. Id. at 318.
69. Id. at 319.
70. There have been occasional narrow exceptions to the general prohibition against subject-matter prohibitions. In Lehman v. Shaker Heights, 418 U.S. 298 (1974), cited by the Court in Consolidated Edison, the Court upheld an ordinance prohibiting any political advertising on public buses. There, the Court found that the city's stated interests-"fears that partisan advertisements might jeopardize long-term commercial revenue, that commuters would be subjected to political propaganda, and that acceptance of particular political advertisements might lead to charges of favoritism," Consolidated Edison, 447 U.S. 530, 539-were sufficiently compelling and that the rule was sufficiently narrowly tailored.
71. The Supreme Court has historically held that a few select areas of speech are "not within the area of constitutionally protected speech" because they are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." R.A.V. v. City of St. Paul, 505 U.S. 377, at 383 (citing Roth v. United States, 354 U.S. 476 (1957) (obscenity) and Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words)). See also Beauharnais v. Illinois, 343 U.S. 250 (1952) (defamation). While these areas are sometimes described as "unprotected" by the First Amendment, the Court has also taken pains to point out that they are not "invisible" to it. R.A.V., 505 U.S. at 383. Thus, while these types of speech may "be regulated because of their constitutionally proscribable content . . . they may [not] be made the vehicles for content discrimination unrelated to their distinctively proscribable content." R.A.V., 505 U.S. at 383-84.
72. See Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972). See generally Geoffrey R. Stone, Consent Neutral Restrictions, 54 U. CHI. L. REV. 46 (1987); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189 (1983); Susan H. Williams, Content Discrimination and the First Amendment, 139 U. PA. L. REV. 615 (1991).
73. See Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972). See generally Geoffrey R. Stone, Consent Neutral Restrictions, 54 U. CHI. L. REV. 46 (1987); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189 (1983); Susan H. Williams, Content Discrimination and the First Amendment, 139 U. PA. L. REV. 615 (1991).
74. See Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972). See generally Geoffrey R. Stone, Consent Neutral Restrictions, 54 U. CHI. L. REV. 46 (1987); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189 (1983); Susan H. Williams, Content Discrimination and the First Amendment, 139 U. PA. L. REV. 615 (1991).
75. 505 U.S. 377 (1991).
76. Id. at 381 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)) (establishing fighting words doctrine and defining fighting words as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace").
77. R.A.V., 505 U.S. at 381.
78. See id. at 380, describing the St. Paul ordinance, ST. PAUL, MINN., LEGIS. CODE § 292.02 (1990).
79. 505 U.S. at 391 ("[T]he ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.").
80. Id.
81. Id.
82. Id.
83. See id. at 392.
84. See id. at 391.
85. R.A.V, 505 U.S. at 391.
86. Id. at 392.
87. See OCRAA § 504(a)(7).
88. See id. § 504(a)(16).
89. See (W. § 504(a)(12).
90. 142 CONG. REC. H8149-04.8180 (daily ed. July 23, 1996) (statement of Rep. Ramstad).
91. See id.
92. See discussion infra Part III.A.
93. See 142 CONG. REC. H8149-04,8182 (daily ed. July 23, 1996) (statement of Rep. Weldon) ("I have in front of me a whole list . . . of examples of where Legal Services Corporation attorneys are engaging in left-wing liberal advocacy and in many cases going exactly against the will of the people"). Senator Helms expressed a similar view of the LSC in his comments during the 1995 budget debate, describing LSC lawyers as "a cadre of liberal lawyers [who] push their social policies down the throats of local governments and citizens." 141 CONG. REC. S8948 (daily ed. June 22, 1995) (statement of Sen. Helms). Representative Doolittle stated "the reason a lot of members want to keep [the LSC] is because it is an advocacy group for liberal causes." 142 CONG. REC. H8149-04,8181 statement of Rep. Doolittle).
94. See 142 CONG. REC. H8149-04,8182 (daily ed. July 23, 1996) (statement of Rep. Weldon) ("I have in front of me a whole list . . . of examples of where Legal Services Corporation attorneys are engaging in left-wing liberal advocacy and in many cases going exactly against the will of the people"). Senator Helms expressed a similar view of the LSC in his comments during the 1995 budget debate, describing LSC lawyers as "a cadre of liberal lawyers [who] push their social policies down the throats of local governments and citizens." 141 CONG. REC. S8948 (daily ed. June 22, 1995) (statement of Sen. Helms). Representative Doolittle stated "the reason a lot of members want to keep [the LSC] is because it is an advocacy group for liberal causes." 142 CONG. REC. H8149-04,8181 statement of Rep. Doolittle).
95. See 142 CONG. REC. H8149-04,8182 (daily ed. July 23, 1996) (statement of Rep. Weldon) ("I have in front of me a whole list . . . of examples of where Legal Services Corporation attorneys are engaging in left-wing liberal advocacy and in many cases going exactly against the will of the people"). Senator Helms expressed a similar view of the LSC in his comments during the 1995 budget debate, describing LSC lawyers as "a cadre of liberal lawyers [who] push their social policies down the throats of local governments and citizens." 141 CONG. REC. S8948 (daily ed. June 22, 1995) (statement of Sen. Helms). Representative Doolittle stated "the reason a lot of members want to keep [the LSC] is because it is an advocacy group for liberal causes." 142 CONG. REC. H8149-04,8181 statement of Rep. Doolittle).
96. In his dissenting opinion in Cornelius v. NAACP, 473 U.S. 788 (1985), Justice Blackmun implicitly recognized that an "anti-status quo" viewpoint was a viewpoint for the purposes of a First Amendment content discrimination analysis. Because advocacy groups such as the NAACP were kept out of a Combined Federal Campaign Fund available to federal workers, Justice Blackmun concluded, "employees may hear only from those charities that think that charitable goals can best be achieved within the confines of existing social policy and the status quo. The distinction is blatantly viewpoint based . . ." Id. at 833 (Blackmun, J., dissenting). The Supreme Court has also found white supremacy to constitute a viewpoint for the purposes of First Amendment analysis. See supra text accompanying notes 80-82; R.A.V. v. St. Paul, 505 U.S. 377 (1992). It has also held that a religious viewpoint is a viewpoint against which the state may not discriminate. See Rosenberger v. Rector and Visitors of the Univ. of Va., 115 S. Ct. 2510, 2517 (1995) ("Religion may be a vast area of inquiry, but it also provides . . . a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered."). If perspectives as broad and amorphous as "white supremacy" and "religion" may be described as viewpoints, "anti-status quo" is arguably a viewpoint as well.
97. 142 CONG. REC. H8149-04,8183 (statement of Rep. Berman).
98. Id.
99. HARRY KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT 67 (1965).
100. W. While many of the most significant advances were made through targeted litigation, the civil rights movement also utilized other legally protected means to advance its cause. The sit-ins and marches staged throughout the South strategically invoked numerous constitutional rights, albeit in a defensive posture, and often forced courts to assert their protected status as well. See, e.g.. Garner v. Louisiana, 368 U.S. 157 (1961) (holding that participants in lunch counter sit-ins were protected by First and Fourteenth Amendments).
101. See, e.g., Stanton v. Stanton, 421 U.S. 7 (1975); Weinberger v. Wisenfeld, 420 U.S. 636 (1975); Frontiero v. Richardson, 411 U.S. 677 (1973); Reed v. Reed, 404 U.S. 71 (1971).
102. KALVEN, supra note 94, at 66-67. Kalven originated this concept in the context of the civil rights movement. It is, however, equally applicable to the women's civil rights movement.
103. The Sedition Act of 1798 represents the most egregious attempt in our national history by Congress to insulate itself from criticism. The Act made it a criminal offense to: write, print, utter or publish . . . any false scandalous and malicious writings against the government of the United States or either House of the Congress . . . or the President . . . with intent to defame the said government . . . or to bring them . . . into contempt, or disrepute; or to excite against them . . . the hatred of the good people of the United States . . . . 1 Stat. 596 (1798), cited in KALVEN, supra note 94, at 17. The act expired by its own terms two years after its enactment. Although the constitutionality of the Sedition Act was never tested, "the attack upon its validity has carried the day in the court of history." New York Times v. Sullivan, 376 U.S. 254, 275 (1964). As analyzed by Harry Kalven, the Sedition Act was remarkable because it represents the only time the United States has had a law creating a crime of seditious libel against the government. KALVEN, supra note 94, at 17. The existence of such a law is significant, according to Professor Kalven, because a "free society is one in which you cannot defame the government." Id. at 16. Thus, to the extent that the LSC restrictions represent an attempt by Congress to tread down this road once again, they are in poor historical company.
104. 376 U.S. 254 (1964).
105. W. at 269 (internal citations omitted).
106. W. at 270.
107. 500 U.S. 173 (1991).
108. Id. at 200.
109. 410 U.S. 113 (1973).
110. 461 U.S. 540 (1983). In TWR, the Court upheld a statute granting a tax exemption for lobbying activities undertaken by veterans' organizations, but not for lobbying activities undertaken by other nonprofit organizations.
111. 432 U.S. 464 (1977). In Maher, the Court upheld a state welfare regulation authorizing payment for services related to childbirth but not for non-therapeutic abortions.
112. Rust, 500 U.S. at 193.
113. Id.
114. As the Court explained the crucial interpretive device in its analysis, "we have here not the case of a general law singling out a disfavored group on the basis of speech content, but a case of the Government refusing to fund activities, including speech . . . ." Id. at 194-95.
115. TWR, 461 U.S. at 549.
116. See also Webster v. Reproductive Health Servs., 492 U.S. 490 (1989), cited approvingly by the Court in Rust, on this point (holding that the government need not remove any obstacles to the exercise of a fundamental right that are not of its own making).
117. See Rust, 500 U.S. at 196 ("The Secretary's regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities.").
118. W. at 200 (quoting United States v. Kokinda, 497 U.S. 720. 726 (1990)).
119. Rust, 500 U.S. at 200.
120. Id. at 195.
121. See id. at 187.
122. See id. at 200.
123. Rust, 500 U.S. at 191.
124. Rust, 500 U.S. at 194 (internal quotation marks omitted).
125. TW, 461 U.S. at 548 (quoting Cammarano v. United States, 358 U.S. 498, 513 1959)).
126. Id.
127. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (upholding a National Park Service regulation prohibiting sleeping in public parks even as applied to individuals protesting the plight of the homeless); United States v. O'Brien, 391 U.S. 367 (1968) (upholding the conviction of an individual who burned his draft card despite the possibly expressive nature of the act). Cf. Schacht v. United States, 398 U.S. 58 (1970) (invalidating the conviction of an individual who engaged in the unauthorized use of a military uniform in a theatrical production tending to discredit the armed forces); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) (invalidating suspension of high school students who wore black armbands to protest the Vietnam War); Stromberg v. California. 283 U.S. 359 (1931) (striking down a statute punishing those who expressed their opposition to organized government by displaying any "flag, banner, or device").
128. Laurence H. Tribe has described these different types of regulations as falling into two "tracks." Regulations that primarily target expressive activity follow "track 1," and should be subject to heightened scrutiny. Those that incidentally burden speech follow track 2" and are subject to the more permissive standard established in O'Brien and reformulated in Rust. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, § 12-2, at 791-92 (2ded. 1988).
129. 391 U.S. 367 (1968).
130. See id. at 377.
131. Id.
132. Id.
133. Id.
134. Id. at 376.
135. See infra Part III discussing the government's current defenses of the LSC restrictions.
136. See U.S. CONST, art. I, § 8, cl. 1 (granting Congress the power to provide for the general welfare); U.S. CONST, art. I, § 8, cl. 18 (granting Congress power to make all laws necessary and proper to execute that power).
137. See, e.g., Cornelius v. NAACP. 473 U.S. 788, 812 (1985) (holding that the underinclusiveness of the restriction in that case "cast[s] doubt on [the] genuineness" of the government's asserted motive).
138. 142 CONG. REC. H8149-04,8179 (daily ed. July 23, 1996) (statement of Rep. Burton). Representative Weldon expressed a similar sentiment that the LSC was engaging in unwelcome litigation. While the LSC recipients he had spoken with were doing "some good things . . . representing people who are being unfairly evicted from their housing, helping out the poor . . . ," Representative Weldon reported that he "did get them [the LSC lawyers] to acknowledge that there are LSC lawyers . . . that engage in what I would call public advocacy to basically thwart the will of the people." Id. at 8182 (statement of Rep. Weldon).
139. See infra Part III.A.3 (providing a more detailed discussion of the lack of tailoring of the restrictions and the inferences that may thereby be raised of an intent to discriminate based on content and speaker identity).
140. United States v. O'Brien, 391 U.S. 367, 383 (1968).
141. See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987) (striking down a Louisiana statute requiring public schools to teach "creation science" whenever they taught evolution because the requirement served no secular purpose); Wallace v. Jaffree, 472 U.S. 38 (1985) (invalidating Alabama statute authorizing schools to set aside one minute at the start of the school day for "meditation or voluntary prayer"); Stone v. Graham, 449 U.S. 39 (1980) (holding unconstitutional a Kentucky statute requiring the posting of the Ten Commandments on the walls of each public classroom because the requirement served no secular purpose).
142. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O'Connor, J., concurring) ("[A] legislature [might] enunciate a sham secular [purpose, but] our courts are capable of distinguishing a sham secular purpose from a sincere one."); Cornelius v. NAACP, 473 U.S. 788, 833-34 (1985) (Stevens, J., dissenting) ("Everyone on the Court agrees that the exclusion of 'advocacy' groups from the CFC is prohibited by the First Amendment if it is motivated by a bias against the views of the excluded groups."); Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 871 (1982) ("[W]hether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions."); Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969) ("In order for the state . . . to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.").
143. See generally Kathleen Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 n.l (1989) (reviewing and critiquing the doctrine of unconstitutional conditions). For recent scholarship on the subject, see Frederick Schauer, Too Hard: Unconstitutional Conditions and the Chimera of Constitutional Consistency, 72 DENV. U. L. REV. 989 (1995), and Martin H. Redish and Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543 (1996).
144. See generally Kathleen Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 n.l (1989) (reviewing and critiquing the doctrine of unconstitutional conditions). For recent scholarship on the subject, see Frederick Schauer, Too Hard: Unconstitutional Conditions and the Chimera of Constitutional Consistency, 72 DENV. U. L. REV. 989 (1995), and Martin H. Redish and Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543 (1996).
145. See generally Kathleen Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 n.l (1989) (reviewing and critiquing the doctrine of unconstitutional conditions). For recent scholarship on the subject, see Frederick Schauer, Too Hard: Unconstitutional Conditions and the Chimera of Constitutional Consistency, 72 DENV. U. L. REV. 989 (1995), and Martin H. Redish and Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543 (1996).
146. See Varshavsky v. Perales, No. 40767/91, slip op. at 16-19 (N.Y. Sup. Ct. Dec. 24, 1996); Legal Aid Soc'y of Haw. v. Legal Servs. Corp., No. 97-00032, slip op. at 29 (D. Hawaii Feb. 14, 1997) ("This smacks of an unconstitutional condition.") (all cases on file with author).
147. 357 U.S. 513 (1958).
148. 408 U.S. 593 (1972).
149. 468 U.S. 364 (1984).
150. 357 U.S. at 519.
151. Id.
152. Perry, 408 U.S. at 597.
153. League of Women Voters, 468 U.S. at 381.
154. W. at 400. Cf. Regan v. Taxation with Representation, 432 U.S. 450 (1983) ("TWR") (discussed supra in text accompanying notes 105-110). The decision in TWR involved Congress's decision not to grant tax-exempt status to organizations if a substantial portion of their activities consisted of lobbying. Since the Court determined that the government was under no obligation to fund such activities, it held that there had been no imposition of an unconstitutional condition. After TWR and League of Women Voters, otherwise tax-exempt organizations have avoided the restriction at issue in TWR by creating separate lobbying organizations.
155. Rust v. Sullivan, 500 U.S. 173, 200 (1991).
156. The LSC mandate is considerably broader than the Title X charter. Whereas Title X was established specifically to address family planning needs (rather than, for example, to provide comprehensive medical care to those in need), the LSC program was established to provide equal access to the justice system for all Americans. While Congress never intended to provide poor people with all the legal resources available to the wealthy, the LSC mandate would have to be narrowed to make it consistent with the latest round of restrictions, mocking its original purpose. By directing funds to independently organized lawyers, the LSC also enmeshes itself in the professional norms of lawyers and their Code of Professional Ethics. These ethical rules require lawyers to provide the services they deem most appropriate to their clients' needs: therefore LSC clients may have a reasonable expectation of comprehensive service, unless the LSC restrictions are considered to override the Code. One of the cases challenging the restrictions raised this apparent conflict between a lawyer's professional obligations and the LSC restrictions, but no court has yet addressed the issue directly. See Varshavsky v. Perales, No. 40767/91 (N. Y. Sup. Ct. Dec. 24, 1996) (avoiding the resolution of the alleged conflict because the court found that the LSC restrictions violated the First Amendment); see also discussion supra note 25. While it is beyond the scope of this Article, a full development of the argument that the government may not be able to control its funds with exquisite specificity would be worth exploring. For an interesting answer to some of these questions, see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 743-47 (1992) (arguing that the government should be limited in its ability to control speech within traditional fiduciary relationships). Part II.B.3 infra discusses the special status of the lawyer-client relationship in our tradition and suggests that Congress's authority to attach limitations to funding in this area should be highly restricted.
157. Rust, 500 U.S. at 200 (quoting United States v. Kokinda, 497 U.S. 720, 726 (1990)).
158. See, e.g., Cole, supra note 149, 718-19 (1992) (stating that the Court's public forum cases have "generated one of the most confused and widely-criticized doctrines of [F]irst (A]mendment law"). See also C. Thomas Dienes, The Trashing of the Public Forum: Problems in First Amendment Analysis, 55 GEO. WASH. L. REV. 109 (1986) (criticizing the Court's public forum jurisprudence); Geoffrey Stone, Fora Americana: Speech in Public Places, 1974 SUP. CT. REV. 233 (same).
159. See, e.g., Cole, supra note 149, 718-19 (1992) (stating that the Court's public forum cases have "generated one of the most confused and widely-criticized doctrines of [F]irst (A]mendment law"). See also C. Thomas Dienes, The Trashing of the Public Forum: Problems in First Amendment Analysis, 55 GEO. WASH. L. REV. 109 (1986) (criticizing the Court's public forum jurisprudence); Geoffrey Stone, Fora Americana: Speech in Public Places, 1974 SUP. CT. REV. 233 (same).
160. See Geoffrey Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 91 (1987) ("[A]lthough it is clear that the Court applies different standards of review for public forums and nonpublic forums, it is less clear precisely what standard it applies.").
161. See Cornelius v. NAACP, 473 U.S. 788, 797 (1985) (holding that the threshold issue that must be decided in applying a public forum analysis is whether the activity allegedly excluded qualifies as "speech protected by the First Amendment, for, if it is not, we need go no further").
162. Christina Wells has noted that the Court's "treatment of abortion counseling [in Rust] as a form of activity rather than a form of speech" has much to do with its "emerging view that abortion is no longer a fundamental right." Since the status of the activity associated with the speech has gone down in the Court's conception of fundamental rights, the speech has been afforded less protection. See Christina E. Wells, Abortion Counseling as Vice Activity: the Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724, 1725-26 (1995).
163. As Justice Kennedy noted in his separate opinion in Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S. Ct. 2374, 2413 (1996) (Kennedy, J., concurring in part, concurring in the judgment in part, and dissenting in part), whether the Court finds a public forum does not change the fact that "strict scrutiny is the baseline rule for reviewing any content-based discrimination against speech. The purpose of forum analysis is to determine whether, because of the property or medium where speech takes place, there should be any dispensation from this rule.").
164. Forum analysis also takes into account the distinction that the Court has occasionally invoked between the government's speech and private speech funded by the government. In a nonpublic forum, the government controls the content of speech because the property has been dedicated to the government's purposes. In a public forum, however, private speakers are free to express their own views, even though they enjoy a government subsidy in the form of the forum. See Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 833-34 (1995). The Court stated: [W]e have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message . . . . [W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes . . . . It does not follow, however . . . that viewpoint-based restrictions are proper when the University for in this case, the government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers. id.
165. See Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939) (holding that "streets and parks . . . [have] . . . time out of mind . . . been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions").
166. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (defining designated public fora as "public property which the State has opened for use by the public as a place for expressive activity."). See also Cornelius v. NAACP, 473 U.S. 788, 802 (1985) ("In addition to traditional public fora, a public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.").
167. See Perry Educ. Ass'n, 460 U.S. at 45 ("In . . . quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.").
168. See Rosenberger, 515 U.S. at 829 ("Once it has opened a limited forum . . . the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not 'reasonable in light of the purpose served by the forum.'") (internal citations omitted).
169. The Court in Perry Educ. Ass'n stated: Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves. Perry Educ. Ass'n, 460 U.S. at 49.
170. See Rosenberger, 515 U.S. at 830 ("The SAF [Student Activities Fund] is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable."). The Rosenberger rationale has been picked up in at least three lower court decisions since it was handed down, two involving public funding rather than physical spaces. For example, in Church on the Rock v. City of Albuquerque, 84 F.3d 1273 (10th Cir. 1996), the Tenth Circuit applied Rosenberger to invalidate a city's policy prohibiting sectarian instruction and religious worship in city-owned senior centers, holding that the policy constituted impermissible viewpoint rather than content-based discrimination within a designated public forum. In Gay Lesbian Bisexual Alliance v. Sessions, 917 F. Supp. 1548 (M.D. Ala. 1996), the Alabama district court similarly invalidated a statute prohibiting any college or university from spending public funds on or allowing the use of facilities by any organization promoting homosexual lifestyles. In Fintey v. National Endowment for the Arts, 100 F.3d 671 (9th Cir. 1996). the Ninth Circuit applied Rosenberger in the context of funding for the arts, holding that discrimination based on viewpoint was impermissible because of the vital role that the arts, like universities, play in our democracy.
171. These are the places that have "time out of mind" been dedicated to speech activity. See Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939).
172. 473 U.S. 788, 803.
173. W. at 805.
174. See id. ("That [First Amendment] activity occurs in the context of the forum created does not imply that the forum thereby becomes a public forum for First Amendment purposes.").
175. 460 U.S. 37 (1983).
176. W. at 47.
177. Id.
178. Id. at 48.
179. Id.
180. Id.
181. 508 U.S. 384 (1993).
182. 454 U.S. 263 (1981).
183. 515 U.S. 819 (1995).
184. W. at 824 (quoting Appendix to Petition for Cert, at 61a).
185. See id. at 835 (noting that viewpoint discrimination is especially dangerous in the context of a public university, "where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition").
186. 454 U.S. 263 (1981).
187. Id. at 267.
188. Id. at 267-68.
189. Id. at 269.
190. Id. at 270.
191. 508 U.S. 384 (1993).
192. Id. at 390.
193. Id. at 391.
194. W. at 392-93, (citing Cornelius v. NAACP, 473 U.S. 788, 806 (1985) and Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 49 (1983)).
195. Cf. Board of Educ., Island Trees Sch. Dist. v. Pico, 457 U.S. 853, 864 (1982) (acknowledging that "public schools are vitally important in the preparation of individuals for participation as citizens, and as vehicles for inculcating fundamental values necessary to the maintenance of a democratic political system . . .") (internal citations omitted).
196. Rust v. Sullivan, 500 U.S. 173, 200 (1991).
197. If the government may continually redefine the scope of the program to exclude restricted activities, then there will never be any basis for the argument that a given restriction is inconsistent with the scope of the program. As scholars have noted in the area of unconstitutional conditions, "[t]o decide whether a condition on funding makes a recipient worse off, one must adopt some baseline from which to measure." Cole, supra note 149, at 696 n.82 (citing Richard A. Epstein, The Supreme Court, 1987 Term-Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent. 102 HARV. L. REV. 4, 13 (1988) and Seth R Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1352-59 (1984)). The problem with the Court's current approach to funding cases is that it "generally articulates no independent baseline, and simply accepts the government's definition of the benefit program as the baseline . . . . However, taken to extremes this approach would allow government to avoid any unconstitutional condition by simply redefining its program." Cole, supra note 149 at 696 n.82. As in the unconstitutional conditions area, restrictions attached to direct funding may never be deemed impermissible if there is no limit to the government's ability to redefine the scope of a program each time it imposes a new restriction. Some independent baseline must exist by which restrictions may be evaluated. See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S. Ct. 2374, 2413-14 (1996) (Kennedy, J., concurring in part and dissenting in part) ("If Government has a freer hand to draw content-based distinctions in limiting a forum than in excluding someone from it. the First Amendment would be a dead letter in designated public forums; every exclusion could be recast as a limitation.").
198. If the government may continually redefine the scope of the program to exclude restricted activities, then there will never be any basis for the argument that a given restriction is inconsistent with the scope of the program. As scholars have noted in the area of unconstitutional conditions, "[t]o decide whether a condition on funding makes a recipient worse off, one must adopt some baseline from which to measure." Cole, supra note 149, at 696 n.82 (citing Richard A. Epstein, The Supreme Court, 1987 Term-Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent. 102 HARV. L. REV. 4, 13 (1988) and Seth R Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1352-59 (1984)). The problem with the Court's current approach to funding cases is that it "generally articulates no independent baseline, and simply accepts the government's definition of the benefit program as the baseline . . . . However, taken to extremes this approach would allow government to avoid any unconstitutional condition by simply redefining its program." Cole, supra note 149 at 696 n.82. As in the unconstitutional conditions area, restrictions attached to direct funding may never be deemed impermissible if there is no limit to the government's ability to redefine the scope of a program each time it imposes a new restriction. Some independent baseline must exist by which restrictions may be evaluated. See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S. Ct. 2374, 2413-14 (1996) (Kennedy, J., concurring in part and dissenting in part) ("If Government has a freer hand to draw content-based distinctions in limiting a forum than in excluding someone from it. the First Amendment would be a dead letter in designated public forums; every exclusion could be recast as a limitation.").
199. The Court has yet to address the exact issue of what level of restrictions would be permissible in a limited public forum operating within an institution not fundamental to society. Each of the cases where the Court found the existence of a limited public forum arose in the context of a school or university, which the Court clearly considers fundamental. Conversely, the Court held that there was no forum in each case suggesting the presence of a limited public forum within a lesser institution. See, e.g., International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (holding that an airport terminal was not a public forum, even though First Amendment activity occurred therein, because airports were neither historically nor expressly dedicated to First Amendment activity). The logic of the Court's decisions in this area, however, suggests that if a forum for expressive activity were recognized within an institution of lesser importance, such as a senior citizens center, the standard of review should be higher than if there were no forum, as in Rust, but less than where the institution is fundamental, as in Rosenberger.
200. See Rust v. Sullivan, 500 U.S. 173, 200 (1991).
201. As David Cole has argued, the "government cannot avoid [F]irst [A]mendment scrutiny [in these areas] by arguing that it has no obligation to subsidize the exercise of constitutional rights." Cole, supra note 149, at 681. Even though the government funds these areas by its own choice, First Amendment scrutiny applies because "each of these institutions plays a central role in shaping and contributing to public debate, and because the internal functioning of each institution demands insulation from government content control." Cole, supra note 149, at 682. Cole suggests that these critical institutions should be considered "spheres of neutrality," or exceptions to the government's general authority to control the use of its funds with specificity, on account of "the role of [these] particular institutions in maintaining a rigorous and diverse public dialogue, and a free citizenry." Cole, supra note 149, at 682.
202. David Cole has suggested that public forums, public universities, and the press are most easily recognized as "spheres of neutrality" in light of the Court's decisions. Cole has also applied his analysis to government funding for the arts and government-funded counseling programs, arguing that these areas should similarly be deemed neutral. See Cole, supra note 149, at 717-47.
203. The House Report accompanying the Legal Service Corporation Act of 1974 explicitly invoked Button to explain that the restrictions contained within the bill should be read so as to be consistent with the First Amendment and lawyers' professional responsibilities to their clients. See H.R. REP. No. 93-247(1974), reprinted in 1978 U.S.C.C.A.N. 3872, 3881 ("Pursuant to Supreme Court decisions (such as NAACP v. Button) and in accordance with the general responsibilities of attorneys to their clients . . . the bill does not seek to prevent recipients and their employees from fully apprising the client community of its legal rights and properly informing poor people about the merits of prospective litigation.").
204. 42 U.S.C. § 2996 (1994) (indicating congressional findings and declaration of purpose).
205. Id.
206. Id.
207. See Cornelius v. NAACP, 473 U.S. 788, 802-03 (1985) (holding that a public forum can be created only "by intentionally opening a nontraditional forum for public discourse . . . [on a property the nature of which is] consistent with expressive activity").
208. H.R. REP. No. 93-247(1974), reprinted in 1978 U.S.C.C.A.N. 3872, 3881.
209. Id.
210. See id. (stating that "[clients' eligibility for legal assistance will essentially be determined by their impoverished circumstances").
211. See LEGAL SERVICES CORPORATION, 1992 ANNUAL REPORT 5.
212. See Howard Gault Co. v. Tex. Rural Legal Aid, Inc., 615 F.Supp. 916, 936 (N.D.Tex. 1985), aff'd in part, rev'd in part on other grounds, 848 F.2d 544 (5th Cir. 1988) (holding that the LSC Act "does not create in an indigent any right to legal services which is enforceable under Section 1983").
213. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 835 (1995).
214. Ibid. W.
215. 42 U.S.C. § 2996(5) (1994).
216. See note 15, supra, describing the history of such restrictions.
217. In Rosenberger, for example, the University of Virginia defended its exclusion of religious groups from the SAF on the grounds that it thought it was obligated to do so by the Establishment Clause of the Constitution. See Rosenberger. 515 U.S. at 839-40.
218. Rosenberger. 515 U.S. at 829 (quoting Cornelius v. NAACP, 473 U.S. 788, 806 (1985)).
219. See id. (noting "viewpoint discrimination is presumed impermissible when directed against speech otherwise within the forum's limitations").
220. Id. at 835.
221. See, e.g., Hickman v. Taylor, 329 U.S. 495, 512 (1947) ("[T]he general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy . . . .").
222. See, e.g., Upjohn v. United States, 449 U.S. 383, 389 (1981). The Court stated: The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961). Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends . . . . Id.
223. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.8(f) (August 1983, as Amended to February 1997); MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR-5-107(A), (B), EC 5-21, EC 5-22 (1983).
224. See H.R. REP. No. 93-247, reprinted in 1978 U.S.C.C.A.N. 3872, 3880 ("[I]t is expected that information about clients will be obtained solely through a simple form and that eligibility will be determined in a manner that produces utmost trust and confidence between attorney and client.").
225. See id. (analyzing the Legal Services Corporation Act of 1974 § 6d(4)).
226. W. (analyzing the Legal Services Corporation Act of 1974 § 7(7)).
227. In the criminal defense context, the Court has noted that a lawyer paid by the government to represent indigent clients "retains all of the essential attributes of a private attorney, including, most importantly, his 'professional independence,' which the State is constitutionally obliged to respect." West v. Atkins, 487 U.S. 42, 50 (1988). Distinguishing the legal profession from the medical profession, for example, the Court noted that "[i]n contrast to the public defender, [the doctor's] professional and ethical obligation to make independent medical judgments did not set him in conflict with the State . . . ." Id. at 51; cf. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981) (explaining the role of a public defender). Although criminal defense is different from civil representation, Dodson and West stand for the principle that a lawyer's professional responsibilities are fundamentally different from those of members of the other professions, and may inherently require opposing the state's interests.
228. See Rust v. Sullivan, 500 U.S. 173, 200 (1991) (raising but not resolving the question that it "could be argued . . . that traditional relationships such as that between doctor and patient should enjoy protection under the First Amendment from Government regulation, even when subsidized by the Government").
229. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
230. Legislative classifications based on race, religion, or national origin are subject to the highest level of scrutiny, strict scrutiny, because "these factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy - a view that those in the burdened class are not as worthy or deserving as others." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). See, e.g., Loving v. Virginia, 388 U.S. 1, 8-9 (1967) (examining classifications based on race); Sherbert v. Verner, 374 U.S. 398, 402-03 (1963) (analyzing classifications based on religion); Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886) (discussing national origin). Legislative classifications based on gender are subject to an intermediate level of scrutiny, in recognition of the fact that gender "generally provides no sensible ground for differential treatment." Cleburne Living Ctr., 473 U.S. at 440. See, e.g., United States v. Virginia, 116 S. Ct. 2264, 2275-76 (1996) (applying intermediate review standard to strike down the Virginia Military Institute's policy of excluding women); Reed v. Reed, 404 U.S. 71, 76 (1971) (announcing intermediate review standard).
231. See, e.g., San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 18 (1973) (applying low level standard of review to school financing scheme that discriminated against the poor); Lindsey v. Normet, 405 U.S. 56, 73-74 (1972) (applying rational basis review to state's summary eviction procedures); Dandridge v. Williams, 397 U.S. 471, 487 (1970) (applying rational basis review to state's imposition of an upper limit on its cash assistance to families).
232. Cleburne Living Ctr., 473 U.S. at 440.
233. Id.
234. See Williams v. Illinois, 399 U.S. 235, 242-45 (1970) (striking down state statute allowing for imprisonment beyond the statutory maximum period where the imprisoned individual was unable to pay an assessed fine or court costs).
235. See James v. Strange, 407 U.S. 128, 141-42 (1972) (striking down a statute imposing liability on indigent defendants for expenditures made by the state in the provision of counsel).
236. See Griffin v. Illinois, 351 U.S. 12, 19 (1956).
237. See Douglas v. California, 372 U.S. 353, 355 (1963).
238. See discussion infra Part III.B.
239. Strange, 407 U.S. at 141.
240. Id at 136.
241. Id. at 136.
242. Id. at 142.
243. 413 U.S. 528 (1973).
244. 473 U.S. 432 (1985).
245. 116 S. Ct. 1620 (1996).
246. Cass Sunstein has described these cases as the "Moreno-Cleburne-Romer trilogy," wherein the Court "ruled off-limits a constitutionally unacceptable 'animus' not involving federalism or discrimination on the basis of race or sex." Cass Sunstein, Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 60 (1996).
247. Moreno, 413 U.S. at 529.
248. Id. at 534.
249. Id.
250. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985).
251. Id. at 450.
252. Id.
253. Romer v. Evans, 116 S. Ct. 1620, 1629 (1996).
254. Id.
255. Id. at 1628.
256. Id.
257. Id. at 1627.
258. Id.
259. Romer, 116 S. Ct. at 1627 (distinguishing other "ordinary" cases where rational basis test was met).
260. Id.
261. See 142 CONG. REC. H8185 (daily ed. July 23, 1996) (statement of Rep. Dornan). Representative Dornan declared, "It's time to defund the left . . . ." Id. at H8185.
262. Varshavsky v. Perales, No. 40767/91, slip op. at 14-15 (N.Y. Sup. Ct. Dec. 24, 1996).
263. Government's Memorandum of Law in Opposition to Motion for Preliminary Injunction and for Class Certification at 13, Velasquez v. Legal Servs. Corp., (No. 97 CV 00182) (E.D.N.Y. Mar. 14, 1997).
264. Defendants' Supplemental Memorandum of Law in Opposition to Motion for Preliminary Injunction at 6, Velasquez v. Legal Servs. Corp. (No. 97 CV 00182) (E.D.N.Y. Mar. 21, 1997).
265. As two observers of the ongoing Congressional effort to limit the activities of LSC lawyers have noted: "If the Legal Services lawyers act improperly, the local program, the court, and the LSC all have sanction mechanisms." Marie A. Failinger & Larry May, Litigating Against Poverty: Legal Services and Group Representation, 45 OHIO ST. L.J. 1, 55 (1984). In light of such existing sanction mechanisms, the broad-based exclusions included in the 1996 restrictions are difficult to justify on the grounds that they will prevent abusive lawyering.
266. As Justice O'Connor, writing for a majority of the Court, recognized in Cornelius v. NAACP, 473 U.S. 788 (1985), a significant misfit between the state's asserted goals and its actions can give rise to an inference that the state has misrepresented its actual purposes. In Cornelius, certain organizations including the NAACP had been excluded from participation in the Combined Federal Campaign ("CFC"), a federal program for charitable giving open to all federal workers. Although the government asserted that it had excluded all advocacy organizations in order to avoid controversy, and that it had included only those organizations that provided direct health and welfare services, the Court noted that other organizations that did not provide such direct services had been included. The Court found that this discrepancy "cast doubt" on the genuineness of the government's asserted objectives, and invited the plaintiff organizations to develop on remand their argument that their exclusion "was impermissibly motivated by a desire to suppress a particular point of view." Id. at 812-13. See also Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972); and Martin v. Struthers, 319 U.S. 141 (1943) (all finding underinclusiveness indicative of an impermissible motive).
267. Which rights are fundamental for the purposes of equal protection analysis are hardly fixed and precise. Statutory schemes impinging upon the right of poor people to travel, vote, or obtain a divorce, for example, have been invalidated as denials of equal protection on the grounds that these rights, among others, are fundamental. See Boddie v. Connecticut, 401 U.S. 371 (1971) (invalidating law impinging on access to the courts to obtain a divorce); Shapiro v. Thompson, 394 U.S. 618 (1969) (addressing right to travel); Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (invalidating Virginia law imposing $1.50 poll tax). Although the Court has offered various formulations for determining whether a right is fundamental, no single definition has emerged as determinative. See, e.g., Boddie, 401 U.S. at 374 (suggesting that the relevant inquiry is whether the state has monopolized enforcement of a particular right); Palko v. Connecticut, 302 U.S. 319, 325 (1937) (suggesting that the relevant question is whether it would be possible to imagine a "scheme of ordered liberty" without recognition of the right at issue as fundamental). See also Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One's Rights (pt. 1), 1973 DUKE L.J. 1153, 1178-80 (discussing the ambiguity in the Supreme Court's jurisprudence on which rights are fundamental); Ira C. Lupu, Untangling the Strands of the Fourteenth Amendment, 77 MICH. L. REV. 981, 1007-08 (1979) (same).
268. Which rights are fundamental for the purposes of equal protection analysis are hardly fixed and precise. Statutory schemes impinging upon the right of poor people to travel, vote, or obtain a divorce, for example, have been invalidated as denials of equal protection on the grounds that these rights, among others, are fundamental. See Boddie v. Connecticut, 401 U.S. 371 (1971) (invalidating law impinging on access to the courts to obtain a divorce); Shapiro v. Thompson, 394 U.S. 618 (1969) (addressing right to travel); Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (invalidating Virginia law imposing $1.50 poll tax). Although the Court has offered various formulations for determining whether a right is fundamental, no single definition has emerged as determinative. See, e.g., Boddie, 401 U.S. at 374 (suggesting that the relevant inquiry is whether the state has monopolized enforcement of a particular right); Palko v. Connecticut, 302 U.S. 319, 325 (1937) (suggesting that the relevant question is whether it would be possible to imagine a "scheme of ordered liberty" without recognition of the right at issue as fundamental). See also Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One's Rights (pt. 1), 1973 DUKE L.J. 1153, 1178-80 (discussing the ambiguity in the Supreme Court's jurisprudence on which rights are fundamental); Ira C. Lupu, Untangling the Strands of the Fourteenth Amendment, 77 MICH. L. REV. 981, 1007-08 (1979) (same).
269. The notion of preservative rights was introduced in reference to voting in Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) and developed in Reynolds v. Sims, 377 U.S. 533, 562 (1964). Moreover, as the Button Court recognized, access to the courts will be critically important for those groups "unable to achieve their objectives through the ballot." NAACP v. Button, 371 U.S. 415, 429 (1963). Frank I. Michelman has written about the connection between access to courts and the ballot: [L]itigation and legislation . . . [are] bound up with one another in an entire, political-legal order in which the court's part is no less critical than the legislature's . . . . Access to the courts and access to legislatures are [thus] claims that merge into one another, . . . [and one] cannot, without confusion, call a person a citizen and at the same time sanction . . . [his] exclusion . . . from that process. Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One's Rights (pt. 2), 1974 DUKE L.J. 527, 534-40.
270. 304 U.S. 144 (1938).
271. Id. at 153 n.4.
272. Id.
273. See Phoenix v. Kolodziejski, 399 U.S. 204 (1970) (invalidating Phoenix law limiting the vote on the issuance of general obligation bonds to property-owning taxpayers); Cipriano v. City of Houston, 395 U.S. 701 (1969) (invalidating Louisiana law extending the vote on municipal utility bonds issuance to property-owning taxpayers); Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969) (invalidating New York statute restricting voting in school district elections to those residents who owned or leased taxable real property in the district or had a child enrolled in the local school); Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (invalidating Virginia law imposing a $1.50 poll tax).
274. See Williams v. Rhodes, 393 U.S. 23, 25 (1968) (invalidating Ohio law making it "virtually impossible for any party to qualify on the ballot except the Republican and Democratic Parties"). Cf. Munro v. Socialist Workers Party, 479 U.S. 189 (1986); American Party of Tex. v. White, 415 U.S. 767 (1974) (upholding state ballot access scheme); Jenness v. Forston, 403 U.S. 431, 439 (1971) (upholding Georgia law placing some additional burdens on new parties because in total, the state's ballot access scheme "in no way freezes the status quo").
275. See Lubin v. Panish, 415 U.S. 709 (1974) (invalidating, as applied to indigents, California law requiring candidates for office to pay a filing fee equivalent to two percent of the annual salary of that office); Bullock v. Carter, 405 U.S. 134 (1972) (invalidating filing fee shifting costs of primary to candidates).
276. Kramer, 395 U.S. at 626 (1969).
277. Id. at 626-27 (emphasis added).
278. Romer v. Evans, 116 S. Ct. 1620, 1628 (1996).
279. Id.
280. Id. at 1629.
281. 163 U.S. 537 (1896),
282. Romer, 116 S. Ct. at 1623 (quoting Plessy, 163 U.S. at 559 (Harlan, J., dissenting)).
283. Justice Harlan noted in his dissent to Plessy: "|I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here." Plessy, 163 U.S. at 559.
284. Sunstein captured the two related ways in which Colorado's Amendment 2 tended to create a caste system based on sexual orientation. First, the Amendment reflected "a desire to isolate and seal off members of a despised group whose characteristics are thought to be in some sense contaminating or corrosive." Sunstein, supra note 237, at 62. In other words, Amendment 2 created a symbolic wall around homosexuals, giving legal imprimatur to the presumably straight majority of voters' wish to designate homosexuals as "other." This wish to seal off an undesirable group was similarly responsible, in the Court's opinion, for the City of Cleburne's effort to prevent the mentally retarded from entering their community. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). The second sense in which Amendment 2 attempted to establish a caste system was in its creation of a "second-class citizenship" for homosexuals whereby it would be more difficult for homosexuals than for any other group to obtain the protection of the laws. See Sunstein, supra note 237, at 63.
285. Cf. Roger C. Cramton, Delivery of Legal Services to Ordinary Americans, 44 CASE W. RES. L. REV. 531, 600 (1994) ("Winning the battle in the courts rather than in the legislatures does not violate democratic principles because the courts are intervening on behalf of groups that are under-represented in the legislatures.") (summarizing DAVID LUBAN, LAWYERS AND JUSTICE, AN ETHICAL STUDY (1988)).
286. Cf. Roger C. Cramton, Delivery of Legal Services to Ordinary Americans, 44 CASE W. RES. L. REV. 531, 600 (1994) ("Winning the battle in the courts rather than in the legislatures does not violate democratic principles because the courts are intervening on behalf of groups that are under-represented in the legislatures.") (summarizing DAVID LUBAN, LAWYERS AND JUSTICE, AN ETHICAL STUDY (1988)).
287. To date, there is no data by which to judge the actual effect of the restrictions on the number of class actions and other actions taken on behalf of the poor. Existing studies of the pro bono activities of private lawyers suggest that "although most lawyers donate some free services, little of it involves the representation of indigents." Cramton, supra note 275, at 578 n. 121.
288. On the importance of class actions for effective individual as well as group representation, see Failinger & May, supra note 256, at 17. Failinger and May argue: [T]he fact is that group representation devices such as class actions are often the most effective way of representing an individual poor person . . . . The individual lawsuit, which may restore some of the economic benefits lost by the poor person, cannot remedy past and future harassment or restore the political balance of power between the institution and the individual. By contrast, the class suit can secure relief for the client that is not only longer-lasting but also broader-based. Additionally, the publicity accompanying the class suit places more of a burden on the welfare official to explain his or her conduct to supervisors and members of the public . . . . Id. See also Hawaii v. Standard Oil Co., 405 U.S. 251, 266 (1972) (recognizing that class actions "may enhance the efficacy of private actions by permitting citizens to combine their limited resources to achieve a more powerful litigation posture").
289. Although no comprehensive list of major LSC victories exists, many of this century's most important cases leading to an expansion of the rights of the poor were brought by LSC lawyers. Notable cases brought by LSC lawyers include Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that the right to divorce is fundamental); Goldberg v. Kelly, 397 U.S. 254 (1970) (holding that recipients of public assistance have a right to a hearing prior to the termination of benefits); and Shapiro v. Thompson, 394 U.S. 618 (1969) (holding that the right to travel is fundamental). See Allen Redlich, A New Legal Services Agenda, 57 ALB. L. REV. 169, 169 n.4 (1993). The fact that such important cases were brought by LSC lawyers suggests that specialization in poverty law does add value to the service LSC lawyers are able to provide their indigent clients. See Cramton, supra note 275, at 590. Cramton writes: [T]he staff-attorney system [of legal services for the poor, in contrast with a system which refers poor persons to members of the private bar] provides a cadre of lawyers who are intellectually and personally committed to serving the poor. The delivery of services may be organized so that clients are served by experienced specialists in various areas of poverty law, such as welfare, housing, or education. Further, the staff-attorney system permits more aggressive pursuit of institutional reform that benefits groups of poor people rather than merely an individual client. Id.
290. 464 U.S. 154 (1984).
291. Id. at 155. Cf. United States v. Stauffer Chem. Co., 464 U.S. 165, 169 (1984) (holding that the government could be precluded from relitigating an issue "already litigated against the same party in another case involving virtually identical facts").
292. Mendoza, 464 U.S. at 159.
293. Id. at 160.
294. Id. at 161.
295. As Allen Redlich has noted: [T]he need to provide a full range of quality legal services cannot be overstated. Just as aspirin tablets and band-aids are not solutions to serious diseases and serious injuries, steering the poor through the system and helping the client get only what the system will allow is not a solution to poverty . . . . Whether the legal services programs of America can increase the number of legal aspirin tablets and band-aids they dispense is in the long run meaningless, unless the programs have the ability and determination to do more. To ensure the poor "access" to the legal system while limiting the ability of their lawyers to use the law in a meaningful manner may make lawyers feel good about themselves and the legal system, but, like a medical facility that dispenses only aspirin, this type of program is of little societal value. Redlich, supra note 278, at 174-75.
296. Varshavsky v. Perales, No. 40767/91, slip op. at 14 (N.Y. Sup. Ct. Dec. 24, 1996).
297. 142 CONG. REC. H8182 (daily ed. July 23, 1996) (statement of Rep. Schiff) (responding to the assertion by colleagues that "unpopular individuals have brought unpopular lawsuits through the Legal Aid Society").
298. See H.R. CONF. REP. No. 95-825 at 16 (1977), reprinted in 1977 U.S.C.C.A.N. 4530, 4537 (reporting a legislative history of the Legal Services Corporation Act Amendments of 1977, Pub. L. No. 95-222, 91 Stat. 1619 (1977). It reads: "Gay rights cases: The House bill prohibits legal assistance with respect to any proceeding or litigation arising out of disputes or controversies on the issue of homosexuality or 'so-called gay rights'.").
299. See Jerry Gray, In Spending Bill, Gauntlet on Census is Thrown Down, N.Y. TIMES, Oct. 1, 1997, at A23 (describing the tentative 1998 budget for the LSC as half of its 1997 budget). See also Richard W. Stevenson, Clinton and Congress in Accord On Budget, Except for Tax Cuts, N.Y. TIMES, May 2, 1997, at A1 (describing the earlier tentative budget agreement reached between the White House and Congressional negotiators).
300. See Jerry Gray, In Spending Bill, Gauntlet on Census is Thrown Down, N.Y. TIMES, Oct. 1, 1997, at A23 (describing the tentative 1998 budget for the LSC as half of its 1997 budget). See also Richard W. Stevenson, Clinton and Congress in Accord On Budget, Except for Tax Cuts, N.Y. TIMES, May 2, 1997, at A1 (describing the earlier tentative budget agreement reached between the White House and Congressional negotiators).
301. See supra note 23.