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The First Amendment might not itself feed, clothe, or shelter people. But it gives them broad latitude to argue that they have a right to those necessities — even when the government is paying their legal fees. That’s essentially the conclusion the Supreme Court recently came to in Velazquez v. Legal Services Corp., decided in February. But to understand the full context of how First Amendment rights interact with the provision of social services to poor people, it’s necessary to consider how Velazquez contrasts with a 1991 Supreme Court case, Rust v. Sullivan. And, as I explain below, the conclusions are somewhat troubling. The Rust decision affirmed a “gag rule” that prohibited doctors at federally funded family planning clinics from discussing abortion with their indigent patients. Emboldened by Rust and by Newt Gingrich’s leadership in the House of Representatives, the Republican-led Congress in 1996 imposed certain restrictions on the representation that lawyers at federally funded legal services organizations can provide to their indigent clientele. Under one of these restrictions, organizations receiving grants from the Legal Services Corp. (LSC) cannot represent poor individuals who seek welfare benefits if the suits challenge the validity of the underlying welfare statutes. In a 5-4 decision, the Court struck down these restrictions as violating the First Amendment’s free speech guarantee. Justice Anthony Kennedy wrote the majority opinion, which was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. CRITICS ALL AROUND The Supreme Court decided Velazquez without overruling Rust. Critics on both the right and the left view this position as untenable. In his Velazquez dissent, Justice Antonin Scalia contended that Rust‘s gag rule “is in all relevant respects indistinguishable” from the LSC restrictions. On the other side of the political spectrum, The New York Times stated in a board editorial that it, too, viewed the two cases as hard to distinguish, but concluded that Velazquez should stand and Rust should be overturned. In my view, Justice Kennedy is not off base in distinguishing Velazquez from Rust. However, whatever the legal differences between the two situations, there is a separate moral calculus that shows the perversity of the restrictions in Rust. As a prelude to explaining why, a bit more on the facts of Velazquez and Kennedy’s opinion is in order. The 1996 LSC restriction had cumbersome and far-reaching effects. It permitted LSC-funded attorneys to appeal agency denials of individual welfare benefits, but only if they could do so without raising certain arguments. More specifically, it barred counsel from arguing that a state welfare statute conflicted with a federal statute, or that a state or federal statute violated the U.S. Constitution. Welfare claimants seeking LSC-funded representation could not escape the restriction by waiving the right to challenge the validity of the underlying welfare law. Rather, LSC grantees had to refuse to advise or represent anyone whose claim potentially implicated the underlying welfare law — even if the litigation as presented would not overtly challenge that law. Moreover, the gag rule arguably extended into the courtroom itself: LSC-funded attorneys could not discuss certain matters in a judge’s presence — even in response to the judge’s direct questions. In his opinion, Justice Kennedy expressly distinguished this scheme from the one at issue in Rust on the basis of whether the overarching state-funded program promotes governmental or nongovernmental speech. In Rust, Kennedy contended, the federal government engaged clinic doctors to transmit its views on contraception and abortion. Because the government’s own message was at stake, it had more latitude to attach speech-related strings to its dollars, in order to ensure that the grantees did not distort or garble its message. In Velazquez, by contrast, Congress subsidizes private lawyers to facilitate the speech of private individuals, namely, the poor clients represented by LSC-funded lawyers. Thus, according to Kennedy, neither the latitude nor rationale that Rust creates for conditioned grants applies to Velazquez. But there is a more important distinction between Rust and Velazquez, one advanced most clearly by the 2nd Circuit. The LSC restriction in Velazquez was aimed at speech that criticizes the constitutional and legal validity of public law and policy. Furthermore, it does so in a forum where these criticisms can be both publicized and meaningful — that is, before courts with the ability to alter the legal status quo. Such speech directly facilitates the operation of our system of government. As self-governance is the necessary precondition for realizing most other values, this category of speech traditionally receives and warrants the First Amendment’s strongest protection. By contrast, the family planning advice and referrals in Rust are more remote from this core First Amendment value — although they still advance other important values, such as enhancing the self-fulfillment and autonomy of the women patients. Kennedy’s opinion does recognize that the Velazquez restriction implicates “central First Amendment concerns” by acting to insulate welfare reform laws from judicial scrutiny. However, he does not expressly assert that Rust involves lower value speech. LAW VS. MORALITY So, although Justice Kennedy did not fully explain it, there is a solid argument for subjecting the restrictions in Velazquez, but not those in Rust, to the strictest scrutiny under the First Amendment. Yet whatever the legal justification for the differing results in the two cases, from a moral perspective, the Rust restriction is the uglier of the two. On this score, it is imperative to focus on the identity of the listeners of the speech, the deception-by-silence that each restriction entails, and the sophistication of the listeners. In Velazquez, the LSC-funded lawyers’ key listeners are not only the indigents who seek representation but also the judges before whom they appear. In Rust, however, the key listeners are indigent women deciding how to deal with their reproductive function. The Rust program, then, made publicly subsidized doctors the agents of two principals — the state and their individual patients — and demanded that doctors subordinate and even betray their patients’ interests in obtaining abortion information, in favor of the government’s family planning agenda. In so doing, the state used its subsidy power to induce doctors to depart from professional norms — especially the canon that professionals be candid with their clients and loyal to their lawful interests. The distortion that Rust effected in the doctor-patient relationship was especially objectionable in the context of family planning clinics for poor people. We hold professionals to certain standards because of the asymmetries between them and their clients — in information, expertise, power, and so forth. These protections are needed most when the asymmetries are greatest, as when the clients are indigent and undereducated. Yet government-funded family planning programs are often their beneficiaries’ only continuing source of health information and medical care. If these poor and underinformed women do not learn about abortion services there, then they may not learn about them anywhere. SILENCE AND TRAPS In Velazquez, by contrast, the effects of the attorneys’ silence might be corrected, at least partially, by the judges — with their sophistication, court personnel, and other resources — to whom the attorneys were speaking. Furthermore, the Velazquez restriction had at least one redeeming feature not present in the Rust scheme: If the LSC-funded attorney could not take a certain case, defending the client’s interests loyally and zealously, she could at least advise the client of the reason for her disqualification and refer the case to someone who could provide the needed assistance. Under Rust, by contrast, publicly subsidized doctors were barred from disclosing to indigents what they were prohibited to discuss, as well as from making referrals to someone who was not so constrained. The overall effect of the Rust restriction was to create a trap for the unwary, an informational black hole for poor and mostly undereducated women. This truly was morally twisted, whatever its legal justification. So, the distinctions that Justice Kennedy makes between the restrictions in Velazquez and Rust are credible as far as they go. But it is deeply unfortunate that Kennedy did not go further — if not by overturning Rust, at least by acknowledging its disturbing legacy. Robert Katz is a Bigelow Teaching Fellow and Lecturer in Law at the University of Chicago. This fall, he will join the faculty of Indiana University at Indianapolis as an associate professor in the School of Law and at the Center on Philanthropy.

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