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 15 16 17 18 19 20 21 22 23 24 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. 49 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 52 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, 55 1 Mr. Kneedler. The case is submitted. 2 (Whereupon, at 12:05 p.m., the case in the 3 above-entitled matter was submitted.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56