Restricted legal speech

Four years ago, Congress, disturbed by the idea that some of the legal services it funded might lead to broader welfare eligibility, added a range of restrictions on the Legal Services Corp. The service was forbidden from undertaking class actions, lobbying, representing most aliens or prisoners, or, to the point in a case currently before the Supreme Court, challenging federal, state or local welfare rules. The court will decide whether this last restriction violates free speech under the First Amendment.

As a lower court has, the Supreme Court might recognize that government, along with the money it sends to various organizations, could also send along restrictions. So, for instance, family planning centers can be circumscribed in the sort of abortion counseling they can offer, grants to art institutions can preclude what the government considers indecent art. The restrictions particularly apply if there is another avenue by which these ideas may be expressed.

And, legal services, too, can be limited. For instance, by narrowing services so that most criminal cases are excluded. But the 1996 law told Legal Services lawyers that they could represent clients in welfare matters as long as they did not challenge the welfare laws affecting their clients. This limitation potentially prevents Legal Services from representing the best interests of their clients and, as important, keeps certain ideas out court, where they may be best resolved.

While rejecting many of the complaints brought against the ’96, the 2nd Circuit Court of Appeals last year reasonably concluded, “The fact that Congress can make grants that favor family planning over abortion, or that favor decency over indecency, in no way suggests that Congress may also make grants to fund the legal representation of welfare applicants under terms that bar the attorney from arguing the unconstitutionality or illegality of whatever rule blocks the client’s success.”

This restriction does not simply define what legal services the federal government will or will not subsidize; it directs the kinds of arguments legal counsel may use in the cases it is directed to accept. In effect, it protects the status quo against effective challenge, which cannot be to the benefit of the client nor the nation generally.