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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - -X

3 LEGAL SERVICES CORP., :

4 Petitioner :

5 v. : No. 99-603

6 VELAZQUEZ :

7 - - - - - - - - - - - - - - - -X

8 UNITED STATES, :

9 Petitioner :

10 v. : No. 99-960

11 VELAZQUEZ :

12 - - - - - - - - - - - - - - - -X

13 Washington, D.C.

14 Wednesday, October 4, 2000

15 The above-entitled matter came on for oral

16 argument before the Supreme Court of the United States at

17 11:04 a.m.

18 APPEARANCES:

19 ALAN LEVINE, ESQ., New York, New York; on behalf of

20 Petitioner Legal Service Corporation.

21 EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General,

22 Department of Justice, Washington, D.C.; on behalf of

23 Petitioner United States.

24 BURT NEUBORNE, ESQ., New York, New York; on behalf of

25 Respondents.

1

1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 ALAN LEVINE, ESQ.

4 On behalf of Petitioner Legal Services

5 Corporation 3

6 ORAL ARGUMENT OF

7 EDWIN S. KNEEDLER, ESQ.

8 On behalf of Petitioner United States 14

9 ORAL ARGUMENT OF

10 BURT NEUBORNE, ESQ.

11 On behalf of Respondents 23

12 REBUTTAL ARGUMENT OF

13 EDWIN S. KNEEDLER, ESQ.

14 On behalf of Petitioner United States 52

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25

2

1 P R O C E E D I N G S

2 (11:04 a.m.)

3 CHIEF JUSTICE REHNQUIST: We'll hear argument

4 next in Number 99-603, Legal Services Corporation v.

5 Velazquez, and United States v. Velazquez.

6 Mr. Levine.

7 MR. LEVINE: Levine, Your Honor.

8 CHIEF JUSTICE REHNQUIST: Levine.

9 ORAL ARGUMENT OF ALAN LEVINE

10 ON BEHALF OF THE PETITIONER LEGAL SERVICE CORPORATION

11 MR. LEVINE: May it please the Court, Mr. Chief

12 Justice:

13 This is a case concerning Congress' power to

14 allocate dollars in the federally subsidized Legal

15 Services program for the categories of civil

16 representation that Congress has chosen to furnish. Under

17 the Rust v. Sullivan line of cases, it is Congress itself

18 that has the power to decide which policies or programs it

19 will promote. It is not the participants in the program,

20 namely the Legal Services lawyers, the grantees, or even

21 the clients, that have that power.

22 Here -- here, the Government is acting to

23 promote its policy of providing free legal services for

24 certain categories or types of civil representation, and

25 it is the lawyers who are delivering those services. What

3

1 Congress did not do was create a Legal Services program to

2 promote diverse private expression by Legal Services

3 lawyers around the country.

4 In 1996, in response to criticism in Congress

5 that the Legal Services lawyers had veered off-course from

6 the program's original purpose by participating in

7 politicized and expensive litigations, a compromise

8 appropriations bill was enacted to limit the scope of the

9 kinds of civil representations that would be funded.

10 Specifically, Congress decided not to finance any longer,

11 litigation to amend or otherwise challenge the Federal or

12 State welfare reform system.

13 QUESTION: Mr. Levine, does the statute at issue

14 here in your view prohibit a Legal Aid attorney

15 representing an individual client from making a

16 constitutional challenge to the application of a

17 particular welfare law?

18 MR. LEVINE: Yes.

19 QUESTION: There seems to be some dispute about

20 whether it does that, but you think that's clear?

21 MR. LEVINE: Yes.

22 QUESTION: And if so I presume that it disables

23 him from undertaking representation in that case.

24 MR. LEVINE: That's correct.

25 QUESTION: And in fact, I take it, the same

4

1 prohibition applies if the law or regulation in question

2 is superseded by another Federal statute, or inconsistent

3 with the ADA, et cetera?

4 MR. LEVINE: That's correct.

5 QUESTION: What --

6 QUESTION: May I ask a question about precisely

7 how that would operate? Let's assume we had an attorney

8 who is funded by Legal Services Corporation and is going

9 to make just the argument that under existing law and

10 regulation the client should receive benefits.

11 That lawyer is joined by another lawyer who is

12 not Legal Services-funded, and that lawyer in the same

13 case, without using any Legal Service funds, urges, and

14 beyond that, the existing law, if it works to deny my

15 client benefits, it's unconstitutional.

16 In other words, I understand your answer so far,

17 that the Legal Services Corporation lawyer cannot present

18 arguments about existing law. Can that lawyer, sticking

19 to what Congress says it will pay for, present that part

20 of the lawsuit while another lawyer not funded by Legal

21 Services argues questions of the consistency of the

22 regulation, of the statute, questions of the compatibility

23 of the statute with the Constitution?

24 MR. LEVINE: I would say no, Your Honor.

25 QUESTION: And what is it in the 504(a)(16) that

5

1 makes it clear that not only can the Legal Services lawyer

2 herself engage in such representation, but cannot team up

3 with a lawyer who is not under that disability?

4 MR. LEVINE: Your Honor, your hypothetical would

5 have been that counsel would be co-counsel in one case on

6 behalf of an individual seeking to obtain benefits under

7 existing law and seeking to challenge --

8 QUESTION: Making arguments lawyers make all the

9 time.

10 MR. LEVINE: In the alternative.

11 QUESTION: Yes.

12 MR. LEVINE: And the position of -- I think the

13 statute on its face is clear, that a lawyer could not

14 participate in a case in which there was a challenge to an

15 existing Federal or State welfare reform statute.

16 The -- Congress made a determination that it did

17 not want to participate in funding Legal Services for

18 efforts to challenge existing welfare reform statutes, and

19 in the program integrity guidelines that are set up, that

20 have been established pursuant to the statute to assure

21 the independence of an affiliate organization of a Legal

22 Services program, it is stressed in those regulations that

23 it's very important that the Legal Services offices funded

24 by Federal Legal Services be separate and distinct from

25 the other, and it seems to me --

6

1 QUESTION: Okay, I understand the --

2 MR. LEVINE: -- and it seems to me that the

3 hypothetical that you're suggesting where two lawyers

4 essentially are co-counsel for one client, that the

5 arguments in the alternative offends that statute --

6 QUESTION: Yes, okay, I think you've been very

7 clear on that. You're saying the Legal Services attorney

8 cannot, in any way, shape, or manner, participate in a

9 lawsuit where anybody makes such a claim. It's not just a

10 limitation on use of the funds of Legal Services

11 Corporation, but of the funds -- he just can't

12 participate.

13 MR. LEVINE: That's correct.

14 QUESTION: The other thing I would like just to

15 make clear on what is the factual background, or what are

16 the limits of this 504(a)(16). Could a Legal

17 Service-funded lawyer make the argument, court, you must

18 read the regulation and statute this way, because if you

19 don't, the regulation will be under a statutory cloud, or

20 the statute would be under a constitutional crowd --

21 cloud. In other words, to urge interpretation of the

22 governing statute or regulation to avoid what the Legal

23 Services Corporation lawyer tells the court would be a

24 serious constitutional question?

25 MR. LEVINE: Well, it seems to me at the

1 beginning of the representation of an individual seeking

2 to obtain benefits under existing law, a Legal

3 Services-funded lawyer makes a determination whether he

4 can proceed in the category of case to just seek benefits

5 under the existing law, or whether the arguments that

6 would be made on behalf of his client would be in some

7 prohibited area, and if it's going to be in some

8 prohibited area --

9 QUESTION: Well, I'm -- the question I'm asking

10 is, is it a prohibited area to say, the reason why I'm

11 urging this reading of the existing law is, it would be

12 under a constitutional cloud if you read it any other way?

13 MR. LEVINE: Well, Your Honor, it seems to me

14 that the arguments that a Legal Services lawyer makes to

15 the court on behalf of his client are the permitted

16 arguments under the statute. I don't think a lawyer,

17 unless questioned by the court, ought to be raising with

18 the court a hypothetical argument that would be --

19 QUESTION: Not a hypothetical -- not a

20 hypothetical argument. Very often, lawyers urge, and this

21 Court, and other Federal courts will say they're going to

22 read the statute a certain way to avoid a serious

23 constitutional question. Nothing abstract about it.

24 Brandeis has said it, it's been said many times since,

25 that you read statutes, if possible, to avoid a

8

1 constitutional question. So I'm asking, is that such an

2 argument within the ball park for Legal Services

3 Corporation?

4 MR. LEVINE: It seems to me, Your Honor, in a

5 colloquy with the court with respect to a particular claim

6 for benefits under existing law, if a Legal Services

7 lawyer is asked questions that get into, if you will --

8 QUESTION: Nothing so shy, just up front in the

9 briefs --

10 MR. LEVINE: Up front, that said -- the lawyer

11 ought to be saying to that court, if Your Honor wants to

12 pursue that line of inquiry, I can answer it here today --

13 QUESTION: It's not a question -- it's not a

14 question by the judge. The lawyer wants to put forward a

15 principle of statutory construction, which is that you

16 avoid interpreting the statute a certain way if it would

17 lead to a serious constitutional issue, and we think it

18 would, says the lawyer. Is that prohibited?

19 MR. LEVINE: It seems to me, Your Honor, that

20 the lawyer can't participate in litigation which is

21 seeking to amend or alter the --

22 QUESTION: We know that.

23 MR. LEVINE: -- statute.

24 QUESTION: We know that.

25 MR. LEVINE: And so --

9

1 QUESTION: This is a matter of statutory

2 construction --

3 MR. LEVINE: The argument --

4 QUESTION: -- of statutory construction, that

5 you interpret it so as to avoid a serious constitutional

6 question.

7 MR. LEVINE: It seems to me in explaining the

8 argument, you can make the argument that I am making this

9 argument under existing law so that the court doesn't have

10 to reach another argument that I would not be permitted to

11 make.

12 QUESTION: Mr. Levine, how could you possibly

13 represent a client adequately if you believe there is a

14 serious constitutional question if the statute is

15 interpreted a certain way, and you make that argument to

16 the court, but then you don't take the next step, which I

17 have never seen avoided, moreover, if you do interpret it

18 this way, it's unconstitutional?

19 I mean, if he's going to make that argument he

20 has to stay out of the case, doesn't he?

21 MR. LEVINE: Yes.

22 QUESTION: Okay. That's the answer.

23 QUESTION: Then, here's the problem I have.

24 When you say that, or when the policy says that the lawyer

25 can bring the case when it amounts to a claim under

10

1 existing law, I assumed that that meant law properly

2 interpreted, but now you seem to be saying in response to

3 Justice Scalia that if the only way one can reach in

4 effect a proper interpretation of law is to look at the

5 constitutional problem that would result if you see it any

6 other way than favorably to my client, the lawyer can't

7 make that argument --

8 MR. LEVINE: Well --

9 QUESTION: -- because the lawyer can't go to the

10 point that Justice Scalia just mentioned.

11 MR. LEVINE: It's --

12 QUESTION: And it therefore seems to me that

13 your position is boiling down to saying that existing law

14 means whatever the law is, or only the law, as admitted or

15 stipulated to by the Government.

16 MR. LEVINE: Well, there are --

17 QUESTION: Because the Government is saying,

18 well, we're denying benefits under existing law, and

19 you're saying, if existing law can only be properly

20 understood in relation to the constitutional risks, you

21 can't understand existing law in that way, which virtually

22 limits the right of the Government lawyer even more than I

23 thought he was going to do.

24 MR. LEVINE: Your Honor, the statute permits a

25 Legal Services lawyer to assist a low income person obtain

11

1 benefits under existing law, and existing law under those

2 circumstances would be what the State welfare reform

3 statute and the regulations provide, and --

4 QUESTION: But we don't know what -- there's a

5 question about what it does provide, and the argument on

6 avoiding constitutional difficulty is an argument about

7 what the law is, what the law should be understood to be,

8 and that argument, based on your answer to Justice Scalia,

9 is an argument that the lawyer apparently cannot make.

10 MR. LEVINE: That lawyer cannot make that

11 argument, and he shouldn't take the case in the first

12 place. The bulk of --

13 QUESTION: So that client has to accept the

14 interpretation of the local welfare office as the law.

15 MR. LEVINE: Oh, no. No, no. That client would

16 go and get another lawyer with the assistance --

17 QUESTION: -- unless he gets outside counsel --

18 MR. LEVINE: -- with the assistance of the Legal

19 Services lawyer. If the Legal Services lawyer here makes

20 a determination that the case that ought to be brought is

21 one that would involve the issues that Justice Scalia has

22 said then the lawyer would say, my -- I can't --

23 QUESTION: Oh, I understand that, but all I'm

24 saying is --

25 MR. LEVINE: -- over --

12

1 QUESTION: -- if I understand your position,

2 then there is a category of arguments about what the law

3 is, what the law should be understood to be, that the

4 Legal Services lawyer cannot make.

5 MR. LEVINE: That's correct.

6 QUESTION: Yes.

7 MR. LEVINE: The over -- well over --

8 QUESTION: Is that some kind of viewpoint

9 discrimination?

10 MR. LEVINE: No. I mean, it's simply, Congress

11 is deciding to fund certain categories of welfare benefit

12 cases, and not other categories of cases.

13 QUESTION: What about a Legal Services lawyer

14 under this statute making an argument that a regulation

15 issued by the agency is invalid under the statute?

16 MR. LEVINE: That would not be permitted either.

17 That would be in the category of cases where Congress --

18 where Congress has decided that it will not permit

19 challenges to Federal or State welfare reform systems, and

20 the purpose, the purpose for this really makes sense.

21 At the same time that these funding -- that this

22 appropriations bill was enacted in 1996, Congress was

23 enacting the Personal Responsibility and Work Opportunity

24 statute, and in that statute Congress basically moved

25 responsibility for welfare reform from the Federal

13

1 Government to the State governments and invited the State

2 governments to develop the State welfare reform programs

3 different than had been done previously.

4 And at the same time, in the same Congress,

5 Congress said that at the same time that we are providing

6 this responsibility to the States, we are simply not going

7 to pay Federal Legal Services lawyers to get involved in

8 the litigation involving the mosaic and interplay of the

9 Federal and State welfare reform systems, and it made

10 perfect sense.

11 QUESTION: Thank you, Mr. Levine.

12 Mr. Kneedler, we'll hear from you.

13 ORAL ARGUMENT OF EDWIN S. KNEEDLER

14 ON BEHALF OF PETITIONER UNITED STATES

15 MR. KNEEDLER: Thank you, Mr. Chief Justice, and

16 may it please the Court:

17 As this Court made clear in West v. Sullivan,

18 the Government -- when the Government appropriates funds

19 to establish a Government program it is entitled, within

20 quite broad limits, to define the scope of that program.

21 QUESTION: Are there limits?

22 MR. KNEEDLER: There are limits, and the

23 principal --

24 QUESTION: And what are they?

25 MR. KNEEDLER: The only situation in which this

14

1 Court has struck down a Government funding restriction on

2 viewpoint grounds was in the Rosenberger case, and in that

3 case, what the Court held is, there the university had

4 made funds available to encourage a broad diversity of

5 private expression and had created what this Court there

6 termed a public forum and reiterated in the NEA case

7 that --

8 QUESTION: Well, in Rosenberger I do think that

9 the Government wasn't paying for the speaker, and here

10 it's paying for the speaker.

11 On the other hand, it seems to me unlike Rust,

12 in that the speech, the message, the communication that's

13 prohibited doesn't contradict the Government's purpose if

14 we say -- and I don't know if we can say, but if we were

15 to say that this was an unlimited forum of some kind, then

16 we have to ask whether or not this restriction is

17 reasonable, and I just don't see how it's reasonable for

18 the Government to restrict the presentation of a case on

19 important legal issues to the third branch.

20 MR. KNEEDLER: Well, Congress did not establish

21 the Legal Services Corporation and the program under it as

22 a public forum. For purposes of forum analysis the

23 question is whether the Legal Services Corporation is a

24 forum. That is the program, because that was the program

25 in the Rosenberger case.

15

1 It was the precise expression or activity that

2 was funded by, in that case, the university's activities,

3 and it -- what Congress did in the Legal Services Act was

4 to provide for the furnishing of a particular professional

5 service, just like in Rust, the particular professional

6 service that is not the full expression of ideas of the

7 sort that has been covered by this Court's free speech

8 cases, it is a professional service in which there are

9 submissions made to a body, either administrative or

10 judicial body, under structural, procedural and

11 substantive --

12 QUESTION: It does carry down to free speech.

13 It's a petition to the Government.

14 MR. KNEEDLER: It is, but as this Court said in

15 the Walters case and the Yorkline case, the First

16 Amendment really doesn't add anything to what has been the

17 traditional source of constitutional guidance in that

18 area, which has been the Due Process Clause.

19 QUESTION: Well, but it does add something,

20 because given the fact, as Justice Kennedy has just

21 pointed out, given the limitations that this kind of forum

22 involve restrictions on relevance and so on, there still

23 is a speech, a central speech element in what's going on

24 here, and there is a general principle, I think, that when

25 the Government takes action to disfavor speech simply

16

1 because it disagrees with the Government, you're getting

2 just about to the molten core of the First Amendment.

3 And it would seem to me that because that's what

4 the policy does here, there would be a good reason for us

5 to say, we should not characterize this as simply the

6 Government paying for services. We ought to characterize

7 it as a speech case, because there's something very risky

8 going on when the Government's policy in effect says, you

9 can't make an argument that disagrees with the Government.

10 MR. KNEEDLER: With all respect --

11 QUESTION: So that's what I think is extra here.

12 that's why I think this is not merely a due process case.

13 MR. KNEEDLER: But there are many situations in

14 our legal system in which Congress has enacted laws that

15 favor one litigant over another, one sort of claim over

16 another, the furnishing --

17 QUESTION: This isn't merely favoring. This is

18 saying, in effect, you may not make the argument that the

19 Government is constitutionally wrong.

20 MR. KNEEDLER: No. I think what Congress did

21 here was say that a lawyer may not take on that case to

22 begin with. In other words --

23 QUESTION: Well, yeah. Then the result of that

24 is that the lawyer may take on the case insofar as it does

25 not involve a constitutional challenge, but insofar as it

17

1 involves or could reasonably involve a challenge to the

2 law as being a constitutional mistake, then the lawyer

3 cannot take on the case, which is another way of saying

4 the lawyer cannot, with the incentive of the Government

5 money, say that, or State money, say that.

6 MR. KNEEDLER: Well, any speech that would

7 happen in a courtroom first of all is not the lawyer's own

8 self-expression. The lawyer is advancing arguments on

9 behalf of a client, and not as a public forum with a free

10 debate. The lawyer is making arguments that have legal

11 consequences.

12 QUESTION: Is the Government the client?

13 MR. KNEEDLER: The Government is not the client,

14 but what the Government is, is, it is the Government that

15 established the program and, as this Court held in Rust,

16 that when the Government establishes a program, it is

17 entitled to encourage certain activities and not others,

18 and --

19 QUESTION: Well, but we said in Forbes, the

20 public television case, that when the Government

21 established its forum you have to give certain discretion

22 to the immediate speaker to preserve the integrity of the

23 message. In that case, the integrity of the message was

24 preserved by excluding certain views. Here, the necessity

25 is the argument, the argument is that the necessity is to

18

1 add certain speech to preserve the integrity of the

2 message for the forum that's been created.

3 MR. KNEEDLER: In Forbes it is possible to think

4 of what was going on there as a debate, and classically a

5 debate among candidates about political issues. We have

6 never thought in our legal system of a courtroom or

7 lawyers as engaging in a public policy or political

8 debate. They are --

9 QUESTION: Well, the terms of the debate by the

10 lawyer may not be political, but the lawyer's raising of

11 constitutional issues is normally a direct response to

12 what, in fact, is the result of a political debate. So

13 you can't exclude, in effect, the significance of politics

14 from constitutional challenge.

15 MR. KNEEDLER: No, but once the matter has been

16 reduced out of the lobbying or the political sphere into

17 the litigation sphere, we have a set of procedural and

18 substantive rules that have legal consequences. When a

19 complaint is filed in court, the other party must respond

20 and the court will enter a judgment.

21 QUESTION: Well, that's right, but if I may just

22 cut you short a little bit on that, those rules allow for

23 challenges to what are political determinations by the

24 Congress. They allow challenges to political results.

25 MR. KNEEDLER: If I could just go back to the

19

1 Rust case, what the Court said there, and it is very

2 similar, because it had to do with the furnishing of

3 particular services, and particular types of expression

4 were not permitted under that program.

5 QUESTION: But it was Government expression.

6 MR. KNEEDLER: No, it was -- I -- it was not --

7 QUESTION: The doctors, I thought, were hired to

8 give the Government's message, and only that message, to

9 the people that they counseled.

10 MR. KNEEDLER: I don't think that's a fair

11 characterization of the program in Rust, and in fact the

12 respondents in this case concede that the Government was

13 not the speaker. What the Government was doing was paying

14 for counselors to exercise their professional judgment in

15 their interactions with clients.

16 That did not lead to a one-directional urging

17 for every person who walked in the door to have family

18 planning. It was counseling to help the client come to

19 her own conclusion as to what the result was. It was

20 professional services, professional judgments just like

21 this one is, and what the Court said --

22 QUESTION: May I ask --

23 MR. KNEEDLER: -- some types of services are

24 outside the scope of the program, and that's exactly what

25 Congress said here.

20

1 QUESTION: Mr. Kneedler, may I ask you a

2 question about -- and you keep bringing up Rust, and it

3 seems to me that whatever else is wrong with this, it

4 fails the line that runs from Speiser v. Randolph. That

5 is, what you're saying is not only can't you use the

6 Government's money to speak the speech, but you can't use

7 your private money to do it, and I thought in all those

8 cases, the lobbying cases, sure, we don't have to pay for

9 your lobbying, but we can't stop you from doing it with

10 your own money.

11 MR. KNEEDLER: If I could make two responses to

12 that. First of all, in Rust itself, the Court recognized

13 that the matching funds that were required under Title X

14 were also subject to the restrictions, and that's in

15 footnote 5 of the Rust decision.

16 But beyond that, what the Legal Services

17 Corporation provided for here is exactly what was provided

18 for in Rust, which was allowing the recipient to set up a

19 separate entity to engage in the activities that could not

20 be engaged in by the recipient itself.

21 The LSC regulations were patterned directly

22 after the regulations in Rust, and --

23 QUESTION: And so the same lawyer could present

24 this -- the argument without any inhibition, using the

25 counterpart organization.

21

1 MR. KNEEDLER: The -- it would -- the matter

2 would have to be presented by the counterpart

3 organization.

4 Now, if the -- if the lawyer involved was a

5 part-time lawyer with the Legal Services-funded recipient,

6 and worked separately for the other entity, and there was

7 the requisite separation of functions, yes, that lawyer

8 could present the arguments, assuming that the separation

9 requirements were met in the other program.

10 But that -- what the Legal Services Corporation

11 did here is consistent with the Regan decision, with

12 League of Women Voters, and most significantly with Rust,

13 in providing for that private expression. But of course,

14 that's to allow for the recipient's private expression,

15 the association's private expression.

16 Here, I think it's also important to bear in

17 mind that the vast majority of the funds, non-LSC funds

18 that are received, are also public funds, the IOLTA funds,

19 the State funds, so we're not talking about an entity that

20 has a large amount of private funds of the sort a typical

21 private association would have.

22 QUESTION: Well, this would be tagged onto, say,

23 State funds, this restriction, as well as --

24 MR. KNEEDLER: This fund does -- this

25 restriction does apply to State funds.

22

1 QUESTION: Mr. Kneedler, let me -- would you

2 just clear up one factual thing for me? If, after a

3 lawyer's been working on a case for a month or two, he

4 finds out there's an argument of this kind in the picture,

5 must he withdraw?

6 MR. KNEEDLER: Yes. The statute does it. I

7 would like to reserve the balance of my time, if I may.

8 QUESTION: Very well, Mr. Kneedler. Mr.

9 Neuborne, we'll hear from you.

10 ORAL ARGUMENT OF BURT NEUBORNE

11 ON BEHALF OF THE RESPONDENTS

12 MR. NEUBORNE: Mr. Chief Justice, and may it

13 please the Court:

14 The principal legal issue before the Court this

15 morning is narrow and precisely tailored. May Congress

16 choose to provide Federal subsidies to a broad array of

17 private lawyers in order to commit them to represent poor

18 clients in litigation in a particular area of the law, in

19 this case welfare law, but forbid the subsidized lawyers

20 from using the Federal funds to raise any argument in

21 court which seeks to challenge or amend existing law, for

22 the extraordinary sweep that the Legal Services

23 Corporation has conceded that those words are to be given.

24 In short, may Congress condition a subsidy to a

25 lawyer for the poor on an explicit requirement that the

23

1 subsidized lawyer argue only in favor of enforcing the

2 legal status quo as that is defined by the last regulation

3 to be issued down the legal chain, and not challenging in

4 any way, by raising its constitutionality, its

5 insufficiency to follow statutes, or its inappropriate

6 construction and creation -- yes, sir.

7 QUESTION: You can put it that way, but you can

8 just as readily put it, may the Government fund

9 representation in cases that raise certain issues and not

10 fund representation in cases that involve other issues.

11 It's not a matter of muzzling someone who's taking on a

12 case. It's a matter of the Government saying, this is the

13 category of cases where we pay for representation. This

14 is another category of cases where we don't pay for

15 representation. We're not muzzling anybody.

16 MR. NEUBORNE: Yes, sir. We have no quarrel

17 with the general principle that the Government has broad

18 power to determine the kinds and categories of cases that

19 it wishes to fund.

20 QUESTION: What's wrong with a category of case

21 that involves welfare recipients, but does not involve a

22 challenge to the constitutionality of the welfare law, or

23 the validity of regulations enacted under the welfare law?

24 What is wrong with that as a category?

25 MR. NEUBORNE: What's wrong with it, Justice

24

1 Scalia, is that it is overtly too broadbased. When the

2 Government simply merges its idea of category into the

3 notion of whether or not the Government -- a lawyer for

4 the poor is to be permitted to raise an argument that

5 challenges the Government's own viewpoint about what the

6 law should be, the Government has simply taken and

7 broadened a power of categorization but used it to permit

8 the argument of one side of this question and not the

9 argument of another.

10 QUESTION: It doesn't favor one side or the

11 other. It just denies representation in certain

12 categories. It seems to me any category of case is

13 viewpoint-based. It's hard to imagine picking out a

14 category of case that doesn't simply eliminate other

15 categories that have a particular viewpoint.

16 MR. NEUBORNE: With respect, this is a unique

17 restriction. This is the only restriction that I've

18 ever -- or that I believe exists, in which the Government

19 has said that you can represent someone in court, in a

20 particular subject matter area, but you cannot challenge

21 the existing legal status quo.

22 QUESTION: But it hasn't said that. It has

23 said, you can represent someone in court so long as it is

24 a case that does not involve a challenge to this event.

25 MR. NEUBORNE: Yes, but that's simply --

25

1 QUESTION: There's a big difference.

2 MR. NEUBORNE: Well, with respect, I don't think

3 so, because all it does is impose an unconstitutional

4 provision on the subsidy. What it says to the lawyer and

5 to the client is that it will give you this money. It

6 will give you this money on condition that there is to be

7 no argument raised in this case that challenges the legal

8 status quo.

9 QUESTION: What if the statute said, Mr.

10 Neuborne, that these Legal Service lawyers could represent

11 low income clients seeking welfare benefits, but they --

12 once a case went to court, they could not handle it?

13 MR. NEUBORNE: In other words, a categorical

14 restriction saying no welfare cases.

15 QUESTION: Well, at the administrative level,

16 yes --

17 MR. NEUBORNE: Yes.

18 QUESTION: -- but you --

19 MR. NEUBORNE: That would be --

20 QUESTION: -- we won't fund you going into

21 court.

22 MR. NEUBORNE: That, Chief Justice, would be a

23 very different case. That --

24 QUESTION: What would be your answer to that?

25 MR. NEUBORNE: There is -- it would depend on

26

1 the motive with which the restriction was imposed. If the

2 motive had been imposed in order to weaken the enforcement

3 to dissipate in legal rights, then it would be

4 viewpoint-discriminatory then. If the motive --

5 QUESTION: Well, why wasn't Rust a situation

6 involving some kind of viewpoint discrimination under your

7 view? I mean, we have to deal with Rust.

8 MR. NEUBORNE: Under the Court's decision in

9 Rust, a fundamental distinction was raised, and if I could

10 compare two cases that the Chief Justice wrote, I think it

11 would demonstrate that.

12 In TR -- in TWR, this Court held that there is

13 substantial power to differentiate among speakers in

14 granting subsidies as long as viewpoint-neutral criteria

15 are used. In Rust, the Court went one step further. The

16 Court then said, where the Government is in fact not -- is

17 in fact a participant in this speech forum -- in other

18 words, where the Government wishes to expound its own

19 message --

20 QUESTION: Well, Mr. Neuborne, Rust doesn't say

21 where the Government wishes to expound its own -- Rust

22 didn't say that the Government is the speaker.

23 MR. NEUBORNE: Well, my understanding, Chief

24 Justice, is that is the way the Court has construed

25 subsequent cases.

27

1 QUESTION: Well, are you talking about the Rust

2 opinion -- you say you're going to compare two cases which

3 I wrote, one of them being TWR --

4 MR. NEUBORNE: I'm sorry.

5 QUESTION: -- and one being Rust. Did you get

6 out of the Rust opinion?

7 MR. NEUBORNE: That'll teach me to do that.

8 (Laughter.)

9 MR. NEUBORNE: The -- as I read the Rust case,

10 and this is before Rosenberger put the gloss on it that

11 I've attempted to present this morning, but as I

12 originally read the Rust opinion, and as I believe it's

13 fairly read, Rust was a case in which the Government had a

14 substantive program with a particular point of view that

15 it wished to have disseminated and was hiring doctors to

16 disseminate that point of view and not the other point of

17 view, and as long as the Government --

18 QUESTION: Well, maybe here the Government has a

19 welfare program and they believe in it, and they don't

20 want it challenged.

21 MR. NEUBORNE: Well, but that point of view --

22 yes, the only difference here is that the Government does

23 have a Rust speaker in this case. The Government's Rust

24 speaker in this case is the Government's lawyer. That's

25 the Government program that the Government speaks through,

28

1 through its program. What the Government is attempting to

2 do here --

3 QUESTION: It's not the Government's lawyer,

4 it's the client's lawyer.

5 MR. NEUBORNE: No, what I meant, the Government,

6 the other lawyer in the case --

7 QUESTION: Oh. Oh.

8 MR. NEUBORNE: -- is the speaker that would fall

9 within the Rust parameters. That is a situation where the

10 Government has hired somebody to speak for the Government,

11 to advance a Government message.

12 What the Government is attempting to do here is

13 to commandeer the voice of the other lawyer in the case as

14 well, and this Court has already unequivocally held that a

15 subsidized lawyer for the poor does not act under color of

16 law precisely because the subsidized lawyer doesn't speak

17 for the State, may not be permitted to even think about

18 speaking for the State, because the lawyer's duty is to

19 the client, and to insulate the lawyer from the

20 possibility of being controlled by the State, in the --

21 this Court has held unequivocally that the lawyer doesn't

22 act under color of law. Now, if --

23 QUESTION: Mr. Neuborne, I want to get you to

24 state your first premise, and I think it's this, but if

25 I'm wrong, that's what I want to find out.

29

1 You've got one principle. To state it crudely,

2 the Government can decide what to pay for and what not to

3 pay for.

4 MR. NEUBORNE: Yes.

5 QUESTION: You've got another principle that

6 says, the Government cannot use its leverage, whether it

7 be by subsidization or otherwise, to engage in viewpoint

8 discrimination.

9 MR. NEUBORNE: Yes, sir.

10 QUESTION: Is your basic principle that whenever

11 a given set of facts could be characterized by either one

12 or the other of those principles, that the First Amendment

13 principle always prevails, that trumps the other one, that

14 there always should be a choice to characterize the issue

15 as a speech issue, not as a mere subsidization issue?

16 MR. NEUBORNE: I'm not sure I understand what --

17 your question, but I'll try to answer it. My principle is

18 this --

19 QUESTION: He's asking you if Rust has to be

20 overruled to decide this case.

21 (Laughter.)

22 MR. NEUBORNE: Thank you, Justice Stevens.

23 QUESTION: Why don't you answer my question?

24 (Laughter.)

25 MR. NEUBORNE: I used to have a fantasy saying I

30

1 was going to put one of you on hold while I answered this

2 question.

3 (Laughter.)

4 MR. NEUBORNE: The question -- may I answer them

5 in order? Justice Souter's question I think applies where

6 the activity itself that the Government is funding is so

7 permeated with First Amendment overtones, as this Court

8 has noted.

9 I mean, speech in court on behalf of a poor

10 client can be a petition to redress grievances. It is a

11 forum of ideas. Of course it's not a public forum, but

12 it's a specialized forum in which the clash of ideas is

13 crucially important, and in which the Government may never

14 be permitted to put its thumb on the scales of those ideas

15 in an effort to use law to control viewpoint, and the

16 viewpoint here is the viewpoint of legality.

17 As Justice Kennedy pointed out in the

18 Rosenberger opinion, when you exclude an entire

19 perspective from the forum you have skewed that forum

20 forever.

21 QUESTION: But Rosenberger was a definite

22 creation by the Government of a forum, and I really

23 question your analogizing the -- what many people call a

24 forum in court, as the same thing as the Government

25 creating a forum. It really isn't at all.

31

1 MR. NEUBORNE: It's not necessarily the same

2 thing. The forum in Rosenberger, of course, was the

3 creation of a limited public forum for widespread speech.

4 The forum that we have here is the creation of a

5 funding scheme designed to enhance and permit speech

6 within a court. Now, that's not the same thing as a

7 public forum. Nobody can walk in off the street --

8 QUESTION: So you would concede that it's lawful

9 to prevent the attorney, using Government funds, from

10 engaging in lobbying activities, or writing a Senator

11 saying please change this law to make it more clear?

12 MR. NEUBORNE: Well, unless one could identify a

13 forum in which that would take place. I don't concede

14 that that's unconstitutional -- that that's necessarily

15 constitutional, because if it was done with the intention

16 of making it difficult to provide a particular point of

17 view to the Government, it would raise problems. But for

18 the purposes of the argument this morning, we do have the

19 most discrete forum that you can think of. It is a

20 forum --

21 QUESTION: My next question was going to be, we

22 then have to identify something that looks like a forum

23 and that we can call a limited forum.

24 MR. NEUBORNE: Well, or, as you wrote in

25 Arkansas Public Television, a private forum, because in

32

1 Arkansas Public Television, which I believe is the most

2 relevant precedent, in Arkansas Public Television, the

3 Court was confronted with a forum that itself had

4 constitutional protection, where the participants in that

5 forum, the public journalists, were themselves entitled to

6 a degree of First Amendment protection.

7 And I think what this Court, as I read Arkansas

8 Public Television, what this Court held is that when the

9 journalists are essentially exercising their own editorial

10 discretion, when they're speaking for themselves, then

11 they're essentially Rust participants, and they're

12 entitled to say what they would, to engage in all sorts of

13 viewpoint determination, and no one has the right, simply

14 because public funds are being used, to claim that there

15 is a command that other types of speech have been

16 determined.

17 QUESTION: I confess to being really confused by

18 this forum discussion. I don't see the creation of any

19 forum here. It seems to me the forums involved are

20 courtrooms that are deciding particular cases. There is

21 not one single forum; there are courtrooms deciding

22 particular cases. And it seems to me the Government has

23 said, you can go into this forum and you can't go into the

24 other forum.

25 MR. NEUBORNE: Yes, but it --

33

1 QUESTION: It's not a matter of discriminating

2 between speakers in some single forum that the Government

3 has invented.

4 MR. NEUBORNE: With respect, Justice Scalia, I

5 don't think the Government has said -- is saying you can

6 go into this forum and not that forum based on an effort

7 to insulate its complaint from challenge.

8 It is the fact that these are

9 viewpoint-discriminatory criteria that the Government is

10 using to condition access to the forum.

11 QUESTION: Perhaps so, but not conditionally

12 access to a single forum. They're saying you can go into

13 some forums, and you can't go into some other forums.

14 MR. NEUBORNE: Well, you can go into a courtroom

15 as long as you argue in favor of the Government's status

16 quo. You cannot enter the courtroom --

17 QUESTION: That's not so.

18 MR. NEUBORNE: -- if you argue against the

19 Government's status quo.

20 QUESTION: That's not so. You cannot go into

21 the courtroom if certain issues are involved. I don't

22 care what side you're on here.

23 MR. NEUBORNE: No, but --

24 QUESTION: We're not going to fund if certain

25 issues are involved in the case. Now, there are other

34

1 forums where those issues aren't involved, and you can go

2 into theirs.

3 Now, maybe there's something against that, but

4 it seems to me it doesn't analogize to creating a single

5 forum and then discriminating among speakers in some

6 single forum.

7 MR. NEUBORNE: With respect, Justice Scalia, I

8 don't mean to belabor the point. The forum here is a

9 courtroom. The forum is one of the most traditional

10 places where ideas are exchanged and where individuals

11 petition for redress and speak on important issues.

12 QUESTION: It's not all courtrooms. It's only

13 courtrooms involving certain categories of cases.

14 MR. NEUBORNE: I know, but --

15 QUESTION: Isn't that right?

16 MR. NEUBORNE: Yes, but the --

17 QUESTION: So --

18 MR. NEUBORNE: But the statute defines those

19 courtrooms. What the statute says is, you can speak

20 freely in a forum in which you advance the status quo.

21 You cannot speak freely in a forum in which you do not.

22 Now, whether --

23 QUESTION: We do have in some States, the State

24 of California I know, the rule that an administrative

25 agency cannot question the constitutionality of a statute.

35

1 MR. NEUBORNE: Yes, but of course that's, one,

2 in an administrative proceeding, it is not in a judicial

3 proceeding, and there's no effort to condition a subsidy

4 on a willingness to either agree or not agree with the

5 Government's status quo.

6 QUESTION: Well, I'm saying it's not unheard of

7 to have forums for the adjudication of legal issues where

8 that forum itself is limited. It's of course --

9 MR. NEUBORNE: Oh, yes.

10 QUESTION: -- not a Federal court.

11 MR. NEUBORNE: Yes.

12 QUESTION: Well, there's also a doctrine from

13 this Court that municipal corporations created by the

14 State can't challenge State regulations.

15 MR. NEUBORNE: Yes, and those are substantive

16 rules of law governing power here, but here what the

17 Government has done is taken a subsidy, a speech subsidy,

18 a crucially important --

19 QUESTION: Suppose that I was worried about the

20 public forum doctrine, not knowing what happens if you

21 start applying it in the way you want, but suppose I

22 accepted your argument -- this is all hypothetical.

23 MR. NEUBORNE: Yes, I mean, could I just --

24 QUESTION: Suppose I accepted your argument --

25 MR. NEUBORNE: -- it's a private forum.

36

1 QUESTION: Well, whatever kind of a forum.

2 There's a whole speech mechanism there that you're

3 suddenly transposing here, and suppose I nonetheless

4 agreed with you, for hypothetical sake, that this is a

5 very unreasonable thing in respect to a client who may be

6 entitled to money, i.e., property owed by the Government.

7 Well, why wouldn't it be unlawful under the Due Process

8 Clause?

9 MR. NEUBORNE: Well, it would. It would be

10 unlawful under the --

11 QUESTION: All right, so --

12 MR. NEUBORNE: -- Due Process Clause. It would

13 also be unlawful under --

14 QUESTION: -- if it's unlawful under the Due

15 Process Clause, why do we even have to get into this

16 argument?

17 MR. NEUBORNE: We don't. We urged the Due

18 Process Clause below. We would welcome a Due Process

19 Clause decision from the Court.

20 QUESTION: May I suggest one other strand that,

21 I wondered why you didn't pick it up? One could view this

22 as a classic unconstitutional condition case. That is,

23 here we give you a pot of money, like we give you whatever

24 the benefit was in Speiser, but if with your own money

25 you're going to do what we don't want to have heard, then

37

1 not only are we not going to fund that, but we're going to

2 pull the money, and -- but you didn't explicitly argue

3 that, and I wondered why.

4 MR. NEUBORNE: Well, I was going to answer

5 Justice Breyer along those terms. There is a powerful --

6 entirely apart from viewpoint discrimination, there's a

7 very powerful, really two-pronged unconstitutional

8 conditions argument.

9 The first prong of the unconstitutional

10 conditions argument says that what's happening here is,

11 the Government's conditioning the formation of an

12 attorney-client relationship, not only that, the formation

13 of an attorney-client relationship of great intensity,

14 because it looks forward to actual litigation in court.

15 It is welfare litigation that's being funded here.

16 So that the Government is funding this intense

17 associational relationship, but it is imposing a condition

18 in which you waive the ability to make certain arguments

19 under it. In other words, you can only have --

20 QUESTION: And what constitutional provision

21 does that violate?

22 MR. NEUBORNE: Freedom of association. It's a

23 -- QUESTION: All right, so it's a free speech case

24 anyway.

25 MR. NEUBORNE: Well, it's a First Amendment

38

1 case, but it doesn't require Justice Breyer's concern

2 about dealing with forum analysis. It is a First

3 Amendment case.

4 The other argument that --

5 QUESTION: Before you get off of

6 unconstitutional conditions, it seems to me you can

7 convert Rust and, indeed, every Government-funding case

8 into an unconstitutional condition case if you're of such

9 a mind.

10 MR. NEUBORNE: Well, I --

11 QUESTION: The Government decides to fund art.

12 Well, you know, as a condition of your getting this money

13 you have to produce art. You can't produce, you know,

14 history or something else. Every funding you could

15 character -- it doesn't seem to me to advance the ball a

16 bit.

17 MR. NEUBORNE: Well, that's a fair critique, but

18 what's different here from, say, an art funding case, or

19 something like that, is here you're funding an intense

20 associational relationship that this Court has already

21 held is entitled to protection against Government

22 manipulation. It's the language, it's the dictum in Rust

23 itself that said, if this were a traditional

24 doctor-patient relationship, if this were a traditional

25 relationship between a university teacher and a student,

39

1 and I believe certainly a traditional relationship between

2 a lawyer and a client, that the First Amendment guarantees

3 a degree of autonomy to that relationship. The Government

4 cannot, simply because it's paying for the relationship --

5 QUESTION: Well now, Rust did not say that.

6 MR. NEUBORNE: No, it was dictum. It was

7 dictum.

8 QUESTION: Well, it was not only dictum, but it

9 said it might be a different case.

10 MR. NEUBORNE: Yes.

11 QUESTION: It didn't say that the opposite rule

12 would prevail.

13 MR. NEUBORNE: Yes, that's absolutely true, Your

14 Honor. I'm not suggesting that Rust --

15 QUESTION: I thought you were.

16 MR. NEUBORNE: -- demands this. I was simply

17 saying that in Rust you alluded to it in your opinion and

18 said it might be a different case, and I'm suggesting this

19 is that different case.

20 QUESTION: Mr. Neuborne, I don't quite

21 understand your answer to Justice Scalia, because I would

22 have thought you would have said about the art is, sure,

23 the Government doesn't have to buy a painting that it

24 doesn't like.

25 It doesn't have to buy an indecent painting, but

40

1 it can say to this artist that's painting on Government

2 funds, it's a lovely portrait, but with your -- in your

3 own -- for your own collection, or for your other gallery

4 owner, you can't do indecent art, and that's --

5 MR NEUBORNE: No, I was certainly not -- I

6 certainly didn't intend to suggest that you could

7 condition restrictions on the use of private money based

8 on an art subsidy, and that's the other unconstitutional

9 condition here.

10 QUESTION: Yes.

11 MR. NEUBORNE: The other unconstitutional

12 condition here is, it takes the very substantial -- and I

13 must disagree with the Solicitor General. It takes very

14 substantial private resources.

15 There are State resources, but there are also

16 very substantial private resources donated to Legal

17 Services offices to enable them to provide certain service

18 to the poor. It takes that money, and it essentially

19 says, you can't use that money to advance these arguments

20 unless you set up an enormously expensive, enormously

21 burdensome separate facility from which to carry out the

22 entity, so that it essentially places a huge burden on the

23 use of private money, and it's a burden different from

24 Rust, because the burden in Rust that was justified

25 because it was the Government speaking, and because it was

41

1 the Government speaking -- I'm sorry, sir.

2 QUESTION: Rust did not say it was the

3 Government speaking.

4 MR. NEUBORNE: No, sir, but I'm trying to

5 distinguish Rust. In Rust, as Justice Kennedy and as the

6 Court has indicated on a number of occasions, there were

7 at least three cases in which Rust has been explained as a

8 Government speech case, not necessarily the Government

9 itself.

10 QUESTION: No. What Rosenberger said, which

11 perhaps you're referring to, is that the Government used

12 private speakers to transmit specific information

13 pertaining to its own program.

14 MR. NEUBORNE: That's what --

15 QUESTION: It didn't say that the Government was

16 the speaker.

17 MR. NEUBORNE: I stand corrected.

18 QUESTION: Even Rosenberger didn't say that.

19 MR. NEUBORNE: That's what I meant. When the

20 Government has a substantive message that it wishes

21 conveyed, and it either uses its own employees or private

22 people to do so, the Government then is essentially acting

23 as a participant in the speech process and can engage in

24 viewpoint discrimination.

25 That is clearly not the case here. Here, no one

42

1 could argue that a lawyer for the poor is somehow

2 disseminating a Government-approved set of information

3 pursuant to some substantive approach.

4 QUESTION: Unless you say the Government here,

5 acting through Congress, wants everybody to say the

6 welfare laws are fine as written.

7 MR. NEUBORNE: Well, and that's exactly what --

8 QUESTION: That's the message.

9 MR. NEUBORNE: Yes. That's exactly what --

10 QUESTION: And that's kind of close to Rust.

11 MR. NEUBORNE: Well, but it's also kind of close

12 to Barnetti. If -- to Barnett -- that the Government

13 cannot -- West Virginia v. Barnett.

14 The Government simply can't compel everyone to

15 say that the welfare laws are fine as written, and they

16 can't use the sub -- a subsidy to breach that.

17 QUESTION: Well, Barnett was where you

18 required someone to affirmatively say something they

19 didn't believe. I don't see any requirement of that

20 degree here.

21 MR. NEUBORNE: Well, if you're a Legal Services

22 lawyer, you either stay out of the case if there's an

23 important constitutional question, or, if you're going to

24 take the case, you have to take the case on condition that

25 you don't raise certain arguments about the validity of

43

1 the Government's program. That essentially silences --

2 QUESTION: Oh, I don't think that's an option. I

3 think given professional responsibilities, the only option

4 is the first.

5 MR. NEUBORNE: Well --

6 QUESTION: They cannot take the case.

7 MR. NEUBORNE: The option of not taking the case

8 is very difficult, first because Legal Services clients,

9 or welfare clients don't appear on your doorstep, Justice

10 Scalia, color-coded by argument. When you enter the

11 relationship of attorney-client in these cases, you do so

12 with someone that appears, you have to -- you speak to

13 them, you have to interview them, you have to investigate

14 the case. It is --

15 QUESTION: It may be an unintelligent law, then,

16 but I don't know that that --

17 MR. NEUBORNE: Well, but it --

18 QUESTION: -- has any bearing upon its

19 unconstitutionality.

20 MR. NEUBORNE: If it --

21 QUESTION: It may be a lot of trouble to sort

22 out those cases that the Government wants to subsidize and

23 those cases that it doesn't want to --

24 MR. NEUBORNE: Well --

25 QUESTION: -- maybe it's too much trouble.

44

1 MR. NEUBORNE: Can I suggest a very bright line,

2 and it may be too bright a line, but the line is this, and

3 I think it's the line that emerges from the Court's cases.

4 When it is a private speaker, speaking on behalf

5 of a private person, and the speech is directed to a

6 forum, in this case a courtroom, which is important for

7 the clash of ideas, the Government may not use viewpoint

8 as a criteria for determining how the funds are going to

9 be used.

10 QUESTION: Suppose I told you that I begin with

11 the premise that the restriction on lawyers lobbying for

12 legislative changes or writing legislators, et cetera, is

13 valid. How could I reach that conclusion and adopt the

14 premise you just suggested to the Court?

15 MR. NEUBORNE: Well, I -- under those

16 circumstances -- you mean the lawyer lobbying on behalf of

17 a client --

18 QUESTION: I want you to assume that that's a

19 valid statute and a valid restriction.

20 MR. NEUBORNE: Yes, and the lawyer can't lobby

21 on behalf of a client as well as on his own -- on behalf

22 of his own beliefs.

23 QUESTION: Could I reach that conclusion and

24 still adopt the premise that you just suggested to the

25 Court?

45

1 MR. NEUBORNE: Yes, I believe you could. I

2 believe you could first because of the --

3 QUESTION: Then why isn't the Congress a forum,

4 et cetera, or a legitimate place to petition, et cetera?

5 MR. NEUBORNE: Well, it is, and I believe that

6 that would be an unconstitutional statute. But I believe

7 that that statute does not require you to lobby on one

8 side of the issue and not lobby on the other.

9 In other words, if the restriction were written,

10 you can't lobby to change the status quo, but you can

11 lobby to somehow cement the status quo, that would be a

12 viewpoint-based discrimination.

13 QUESTION: But --

14 MR. NEUBORNE: If it is simply a categorical ban

15 on all types of conduct, regardless of whether it is

16 viewpoint-based or not, that's a very different story.

17 QUESTION: But your status quo argument is a

18 very fast, you know, moving target too. You can certainly

19 say that an attorney who goes into court and urges that

20 his client receive a welfare benefit is -- argues to

21 change the status quo. The status quo is that the

22 Government now has the money. He wants to change the

23 status quo, have his client get the money.

24 MR. NEUBORNE: Yes.

25 QUESTION: So it's not just all --

46

1 MR. NEUBORNE: In fairness, though, it's the

2 legal status quo. It's the legal --

3 QUESTION: Well, yeah, but, sir, that is just a

4 question of how you define the thing.

5 MR. NEUBORNE: Well, but that's what the statute

6 says. The statute says you can't go into court, and you

7 heard today the Legal Services Corporation concede the

8 enormous reach of it. You cannot go into a court and

9 challenge whether or not a particular regulation or

10 statute is or is not a valid regulation or statute. You

11 must take it as written, and apply it as written.

12 That, I suggest to you, is a core

13 viewpoint-based discrimination, and a core interference

14 with what attorneys ordinarily do for clients, and so it

15 is an interference with the autonomous relationship,

16 because it tells the lawyer what arguments the lawyer is

17 allowed to make and what arguments he's not.

18 Now, if --

19 QUESTION: Mr. Neuborne --

20 MR. NEUBORNE: -- it is not the viewpoint --

21 QUESTION: -- suppose during World War II -- I

22 don't know if the Government did this, but suppose it

23 decided to subsidize patriotic films. It wanted to give

24 Hollywood producers money to produce films that would buoy

25 up the spirit of the American people during the war. We

47

1 don't want Ginger Rogers, we want Humphrey Bogart and

2 Casablanca and all the anti-Nazi --

3 MR. NEUBORNE: Well, Ginger Rogers could be

4 patriotic.

5 QUESTION: Okay. Is that okay?

6 MR. NEUBORNE: It might be, sir, yes.

7 QUESTION: But you can't do Ginger Rogers and

8 Fred Astaire, just Bogart, or you know, other

9 patriotic-type films.

10 MR. NEUBORNE: Well, that's very close to the

11 hypothetical that you used on a number of occasions about

12 the National Endowment for Democracy. We don't claim --

13 it is not our argument that just because you fund the

14 National Endowment on Democracy you have to fund the

15 National Endowment on Totalitarianism.

16 Where the Government sets up a program to

17 express its own views, the Government has broad power to

18 do so, and during the war, to set up a program to help

19 patriotism --

20 QUESTION: It's not expressing its own views. I

21 mean, it's just a particular category of views that it

22 wants to subsidize. These aren't -- it's not writing the

23 movies. It wants patriotic views subsidized.

24 MR. NEWBORN: Well, but with respect, Your

25 Honor, that is precisely the kind of program in which the

48

1 Government -- it's like Rust. The Government says there

2 are a series of ideas we want to get out there. Those are

3 good ideas, and we're prepared to pay for them, and we are

4 prepared to in a sense subsidize people to speak for us,

5 for the Government. If that's what's happening, then its

6 constitutional.

7 If, on the other hand, what they're doing is

8 subsidizing large numbers of private individuals to speak

9 without creating a Government program -- and the big

10 difference here is Pope v. Johnson. Pope v. Johnson says

11 you can't think of a subsidized lawyer as someone who is

12 simply parroting the Government's line.

13 QUESTION: Yeah, but why can't the Government

14 say the things we're interested in subsidizing here is,

15 where someone has been denied benefits to which he's

16 entitled under the text, we're not going to get into, you

17 know, whether the regulations are okay, or the statutes

18 are okay. It's just this one thing we want to

19 subsidize.

20 MR. NEWBORN: No, because in order to --

21 QUESTION: Just like we want to subsidize

22 patriotism, we don't want to subsidize Ginger Rogers, we

23 want to subsidize, you know, making -- defending claims

24 under the text of a statute. We just don't want to go

25 beyond that.

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1 MR. NEWBORN: Because they're speaking through a

2 person who cannot possibly be thought of as expressing the

3 Government's view, and if what it wishes to do is speak

4 through someone who does not express the Government view,

5 it cannot use viewpoint-based criteria for allocating

6 the subsidies.

7 QUESTION: Well, I don't think Humphrey Bogart

8 would want to be thought of as being a mouthpiece for the

9 Government's view --

10 MR. NEWBORN: Well, he would be.

11 QUESTION: -- or the producer of the case for

12 that matter --

13 MR. NEWBORN: He would be.

14 QUESTION: -- of the movie.

15 MR. NEWBORN: He would be, if he was funded

16 pursuant to a Government program that was designed to

17 foster patriotism during war as part of the Government's

18 propaganda apparatus.

19 Now, he may not like being called that, but

20 that's what he is.

21 QUESTION: Well --

22 MR. NEWBORN: And -- but that's very different

23 from saying they're going to fund a bunch of university

24 professors to conduct some research and then say to the

25 university professors, the only kind of things that you

50

1 could say are things that support the status quo, not

2 things that don't support the status quo, because the

3 university professors cannot be perceived as speaking for

4 the Government under those circumstances, any more than

5 the lawyer here can be seen as speaking for the

6 Government.

7 The bright line, the test that this Court has

8 set out --

9 QUESTION: Well, it can --

10 MR. NEWBORN: -- is a good test, it works. I'm

11 sorry, Justice O'Connor.

12 QUESTION: I didn't notice your light was on.

13 I'm not going to ask you.

14 MR. NEWBORN: Thank you.

15 The test that this Court has set out is not a

16 perfect test. It's hard to decide whether or not someone

17 speaks for the Government or does not speak for the

18 Government. In Rust, I think the Court got it wrong. The

19 Court treated the doctors as though they were speaking for

20 the Government, which means that the principle with

21 Rust --

22 QUESTION: Thank you. Thank you, Mr. Neuborne.

23 MR. NEUBORNE: Thank you, Your Honor.

24 QUESTION: Mr. Kneedler, you have 5 minutes

25 remaining.

51

1 REBUTTAL ARGUMENT OF EDWIN S. KNEEDLER

2 ON BEHALF OF PETITIONER UNITED STATES

3 MR. KNEEDLER: Thank you, Mr. Chief Justice.

4 It's important to bear in mind that what we have

5 here is what type -- is a question concerning what type of

6 professional services is the Government going to pay for

7 under a Government program which is neither a regulation

8 nor is it a funding restriction that affects private

9 expression of the sort that was involved in NEA. It is

10 funding professional services.

11 I also take substantial issue with respondent's

12 claim that all that Rust covers is Government speech. As

13 the Chief Justice pointed out, Rust itself did not say

14 that, and this Court's subsequent cases have not said

15 that.

16 In the Rosenberger case, for example, in

17 addition to the passage the Chief Justice quoted about

18 using private persons to deliver a message pertaining to

19 the Government's own program, on page 630 -- or 834, the

20 Court further said, it does not follow from the Government

21 speaking -- where the Government itself speaks, that it

22 does not follow that viewpoint-based restrictions are

23 proper when the university does not itself speak, or

24 subsidized transmittal of a message that it favors, but

25 instead expends funds to encourage a diversity of views

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1 from private speakers.

2 The dichotomy that was created in Rosenberger

3 was one where the Government is subsidizing essentially a

4 forum where the Government gives money to a forum and asks

5 the private speakers to have at it with one another for

6 the benefit of the public at large, which is different

7 from subsidizing a message the Government favors.

8 Here, although the Legal Services lawyer

9 opposing a State agency may not be advancing the

10 Government's speech, the Government has decided that when

11 it comes to a challenge of a State welfare regulation,

12 that is not a message that the Government favors within

13 the meaning of Rust.

14 And again, NEA and the Wisconsin case last term

15 did not suggest that Rust was limited to situations where

16 it is the Government's own speech.

17 One way in which this case raises even less of a

18 First Amendment question than Rust is the fact that in

19 Rust the doctor was not even permitted to advise the

20 client where other services could be obtained. Under this

21 program, the Legal Services lawyer, if he or she

22 identifies a possible challenge to a statute or

23 regulation, may tell the client that, may refer the client

24 to another agency, to a pro bono list.

25 Every LSC recipient is required to have a

53

1 private attorney involved in the program with a list of

2 attorneys to whom cases may be referred, so there is no

3 gagging of communications at all. Even though there's no

4 attorney-client relationship, the LSC fund recipient can

5 refer the client.

6 Also, in the context of litigation, to the

7 extent the courtroom is a forum, it's a forum that exists

8 independent of the Legal Services Corporation. What the

9 Legal Services Corporation does is decide what sorts of

10 cases are going to be funded, and there isn't enough money

11 to go around. Congress had to decide how those moneys

12 should be allocated. Lawyers do this all the time. Legal

13 Services recipients do this all the time, in terms of

14 setting their own priorities.

15 With respect to issues concerning challenging

16 the Government's position, one need look no further than

17 sovereign immunity on the State level to the Eleventh

18 Amendment to recognize that there are many situations in

19 which the Government may decline to allow challenges in

20 court to its own positions and, by the same token,

21 Congress could certainly choose not to -- could repeal the

22 Equal Access to Justice Act and not provide attorney's

23 fees to people who want to sue the Government, even though

24 it may provide attorney's fees for suits against private

25 parties.

54

1 And as we point out in our brief, Congress has

2 provided differential standards for the award of

3 attorney's fees, favoring plaintiffs in certain types of

4 cases like environmental cases or civil rights cases, but

5 not favoring the defendants in those cases.

6 As Justice Scalia pointed out, all litigation

7 has two sides, and in one respect could be viewed as

8 viewpoint, but this Court has never analyzed regulations

9 on attorney conduct or the attorney-client relationship in

10 that way.

11 Also, with respect to the argument that this is

12 an anti-Government -- a prohibition against

13 anti-Government speech, this is -- there's not a

14 monolithic Government here. This statute prohibits an LSC

15 recipient from taking on a case where what she would be

16 doing would be challenging a State regulation as being in

17 violation of Federal law.

18 In other words, it would be a situation where

19 the lawyer might even be trying to vindicate, in her view,

20 what Federal law says on the subject, but still the client

21 is not, or the attorney is not permitted to take that on.

22 Congress could reasonably determine in the allocation of

23 scarce resources that that was a better allocation of the

24 resources.

25 CHIEF JUSTICE REHNQUIST: Thank you,

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1 Mr. Kneedler. The case is submitted.

2 (Whereupon, at 12:05 p.m., the case in the

3 above-entitled matter was submitted.)

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