Amdt1.3.22.7 Government's Message Versus Private Speakers

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Court has cautioned that “Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.” 1 In Legal Services Corp. v. Velazquez, the Court struck down a condition on federal grants to local organizations providing free legal services to indigent clients.2 The condition prohibited grantees from representing clients in cases which “involve an effort to amend or otherwise challenge existing law” regarding “a Federal or State welfare system.” 3 As interpreted by the government, the condition required lawyers working for a grantee both to decline a representation that would involve such arguments and to withdraw from a representation when such arguments “became apparent after representation was well underway.” 4

The Court held that the condition was unconstitutional.5 The Court distinguished Rust, explaining that in the circumstances presented there, the government “used private speakers to transmit information pertaining to its own program” 6 In other words, the government was the speaker in Rust through its program.7 In contrast, the Court reasoned, the federal program in Velazquez “was designed to facilitate private speech, not to promote a governmental message.” 8 Congress funded the program so that grantees could “provide attorneys to represent the interests of indigent clients.” 9 In addition, a lawyer working for a grantee speaks on her client’s behalf; she is “not the government’s speaker.” 10 The condition, the Court reasoned, could prohibit lawyers from presenting “all the reasonable and well-grounded arguments necessary for proper resolution” of welfare cases, thereby “distort[ing]” the “usual functioning” of the legal system to the detriment of individual clients and the courts deciding those cases.11 The Court observed that while Congress “was not required to fund the whole range of legal representations or relationships,” it could not use funding of private speech to “suppress[]. . . ideas thought inimical to the Government’s own interest.” 12

Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001). back
Id. at 536. back
Id. at 538 (quoting Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504, 110 Stat. 1321–53). back
Id. at 539. back
Id. at 549. back
Id. at 541 ( “As we said in Rosenberger, ‘when the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.’” (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995))). back
The Velazquez Court acknowledged that the Rust Court did not explicitly rely on the government speech rationale, but noted that later Supreme Court cases “explained Rust on this understanding.” Id. See Amdt1.3.5.2 Government Speech and Government as Speaker. back
Legal Servs. Corp., 531 U.S. at 542. back
Id. back
Id. back
Id. at 543–54. back
Id. at 548–49. back