[February 28, 2001]

Justice Kennedy delivered the opinion of the Court.

In 1974, Congress enacted the Legal Services Corporation Act, 88 Stat. 378, 42 U.S.C. § 2996 et seq. The Act establishes the Legal Services Corporation (LSC) as a District of Columbia nonprofit corporation. LSC’s mission is to distribute funds appropriated by Congress to eligible local grantee organizations “for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.”

LSC grantees consist of hundreds of local organizations governed, in the typical case, by local boards of directors. In many instances the grantees are funded by a combination of LSC funds and other public or private sources. The grantee organizations hire and supervise lawyers to provide free legal assistance to indigent clients. Each year LSC appropriates funds to grantees or recipients that hire and supervise lawyers for various professional activities, including representation of indigent clients seeking welfare benefits.

This suit requires us to decide whether one of the conditions imposed by Congress on the use of LSC funds violates the First Amendment rights of LSC grantees and their clients. For purposes of our decision, the restriction, to be quoted in further detail, prohibits legal representation funded by recipients of LSC moneys if the representation involves an effort to amend or otherwise challenge existing welfare law. As interpreted by the LSC and by the Government, the restriction prevents an attorney from arguing to a court that a state statute conflicts with a federal statute or that either a state or federal statute by its terms or in its application is violative of the United States Constitution.

Lawyers employed by New York City LSC grantees, together with private LSC contributors, LSC indigent clients, and various state and local public officials whose governments contribute to LSC grantees, brought suit in the United States District Court for the Southern District of New York to declare the restriction, among other provisions of the Act, invalid. The United States Court of Appeals for the Second Circuit approved an injunction against enforcement of the provision as an impermissible viewpoint-based discrimination in violation of the First Amendment. We granted certiorari. We agree that the restriction violates the First Amendment, and we affirm the judgment of the Court of Appeals.


From the inception of the LSC, Congress has placed restrictions on its use of funds. For instance, the LSC Act prohibits recipients from making available LSC funds, program personnel, or equipment to any political party, to any political campaign, or for use in “advocating or opposing any ballot measures.”  The Act further proscribes use of funds in most criminal proceedings and in litigation involving nontherapeutic abortions, secondary school desegregation, military desertion, or violations of the Selective Service statute.  Fund recipients are barred from bringing class-action suits unless express approval is obtained from LSC.

The restrictions at issue were part of a compromise set of restrictions enacted in the Omnibus Consolidated Rescissions and Appropriations Act of 1996 and continued in each subsequent annual appropriations Act. The relevant portion of §504(a)(16) prohibits funding of any organization

“that initiates legal representation or participates in any other way, in litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system, except that this paragraph shall not be construed to preclude a recipient from representing an individual eligible client who is seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation.”

We are concerned with the statutory provision which excludes LSC representation in cases which “involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation.”

In 1997, LSC adopted final regulations clarifying §504(a)(16). LSC interpreted the statutory provision to allow indigent clients to challenge welfare agency determinations of benefit ineligibility under interpretations of existing law. For example, an LSC grantee could represent a welfare claimant who argued that an agency made an erroneous factual determination or that an agency misread or misapplied a term contained in an existing welfare statute. According to LSC, a grantee in that position could argue as well that an agency policy violated existing law.  Under LSC’s interpretation, however, grantees could not accept representations designed to change welfare laws, much less argue against the constitutionality or statutory validity of those laws.  Even in cases where constitutional or statutory challenges became apparent after representation was well under way, LSC advised that its attorneys must withdraw....


The United States and LSC rely on Rust v. Sullivan, 500 U.S. 173 (1991), as support for the LSC program restrictions. In Rust, Congress established program clinics to provide subsidies for doctors to advise patients on a variety of family planning topics. Congress did not consider abortion to be within its family planning objectives, however, and it forbade doctors employed by the program from discussing abortion with their patients. Recipients of funds under Title X of the Public Health Service Act challenged the Act’s restriction that provided that none of the Title X funds appropriated for family planning services could “be used in programs where abortion is a method of family planning.”  The recipients argued that the regulations constituted impermissible viewpoint discrimination favoring an antiabortion position over a proabortion approach in the sphere of family planning. They asserted as well that Congress had imposed an unconstitutional condition on recipients of federal funds by requiring them to relinquish their right to engage in abortion advocacy and counseling in exchange for the subsidy.

We upheld the law, reasoning that Congress had not discriminated against viewpoints on abortion, but had “merely chosen to fund one activity to the exclusion of the other.” The restrictions were considered necessary “to ensure that the limits of the federal program [were] observed.” Title X did not single out a particular idea for suppression because it was dangerous or disfavored; rather, Congress prohibited Title X doctors from counseling that was outside the scope of the project.

The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding. We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, see Board of Regents of Univ. of Wis. System v. Southworth 529 U.S. 217 (2000), or instances, like Rust, in which the government “used private speakers to transmit information pertaining to its own program.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). As we said in Rosenberger, “[w]hen 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.”  The latitude which may exist for restrictions on speech where the government’s own message is being delivered flows in part from our observation that, “[w]hen the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.”

Neither the latitude for government speech nor its rationale applies to subsidies for private speech in every instance, however. As we have pointed out, “[i]t does not follow . . . that viewpoint-based restrictions are proper when the [government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.”

Although the LSC program differs from the program at issue in Rosenberger in that its purpose is not to “encourage a diversity of views,” the salient point is that, like the program in Rosenberger, the LSC program was designed to facilitate private speech, not to promote a governmental message. Congress funded LSC grantees to provide attorneys to represent the interests of indigent clients. In the specific context of §504(a)(16) suits for benefits, an LSC-funded attorney speaks on the behalf of the client in a claim against the government for welfare benefits. The lawyer is not the government’s speaker. The attorney defending the decision to deny benefits will deliver the government’s message in the litigation. The LSC lawyer, however, speaks on the behalf of his or her private, indigent client.

The Government has designed this program to use the legal profession and the established Judiciary of the States and the Federal Government to accomplish its end of assisting welfare claimants in determination or receipt of their benefits. The advice from the attorney to the client and the advocacy by the attorney to the courts cannot be classified as governmental speech even under a generous understanding of the concept. In this vital respect this suit is distinguishable from Rust.

The private nature of the speech involved here, and the extent of LSC’s regulation of private expression, are indicated further by the circumstance that the Government seeks to use an existing medium of expression and to control it, in a class of cases, in ways which distort its usual functioning.

When the government creates a limited forum for speech, certain restrictions may be necessary to define the limits and purposes of the program.  The same is true when the government establishes a subsidy for specified ends. As this suit involves a subsidy, limited forum cases such as Perry, Lamb’s Chapel and Rosenberger may not be controlling in a strict sense, yet they do provide some instruction. Here the program presumes that private, nongovernmental speech is necessary, and a substantial restriction is placed upon that speech. At oral argument and in its briefs the LSC advised us that lawyers funded in the Government program may not undertake representation in suits for benefits if they must advise clients respecting the questionable validity of a statute which defines benefit eligibility and the payment structure. The limitation forecloses advice or legal assistance to question the validity of statutes under the Constitution of the United States. It extends further, it must be noted, so that state statutes inconsistent with federal law under the Supremacy Clause may be neither challenged nor questioned.

By providing subsidies to LSC, the Government seeks to facilitate suits for benefits by using the State and Federal courts and the independent bar on which those courts depend for the proper performance of their duties and responsibilities. Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys in much the same way broadcast systems or student publication networks were changed in the limited forum cases we have cited. Just as government in those cases could not elect to use a broadcasting network or a college publication structure in a regime which prohibits speech necessary to the proper functioning of those systems, it may not design a subsidy to effect this serious and fundamental restriction on advocacy of attorneys and the functioning of the judiciary.

LSC has advised us, furthermore, that upon determining a question of statutory validity is present in any anticipated or pending case or controversy, the LSC-funded attorney must cease the representation at once. This is true whether the validity issue becomes apparent during initial attorney-client consultations or in the midst of litigation proceedings. A disturbing example of the restriction was discussed during oral argument before the Court. It is well understood that when there are two reasonable constructions for a statute, yet one raises a constitutional question, the Court should prefer the interpretation which avoids the constitutional issue. Yet, as the LSC advised the Court, if, during litigation, a judge were to ask an LSC attorney whether there was a constitutional concern, the LSC attorney simply could not answer.

By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power. Congress cannot wrest the law from the Constitution which is its source. “Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.”

The restriction imposed by the statute here threatens severe impairment of the judicial function.  The courts and the public would come to question the adequacy and fairness of professional representations when the attorney, either consciously to comply with this statute or unconsciously to continue the representation despite the statute, avoided all reference to questions of statutory validity and constitutional authority. A scheme so inconsistent with accepted separation-of-powers principles is an insufficient basis to sustain or uphold the restriction on speech.

It is no answer to say the restriction on speech is harmless because, under LSC’s interpretation of the Act, its attorneys can withdraw. This misses the point. The statute is an attempt to draw lines around the LSC program to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider.

The restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel. The explicit premise for providing LSC attorneys is the necessity to make available representation “to persons financially unable to afford legal assistance.”  There often will be no alternative source for the client to receive vital information respecting constitutional and statutory rights bearing upon claimed benefits. Thus, with respect to the litigation services Congress has funded, there is no alternative channel for expression of the advocacy Congress seeks to restrict. This is in stark contrast to Rust. There, a patient could receive the approved Title X family planning counseling funded by the Government and later could consult an affiliate or independent organization to receive abortion counseling. Unlike indigent clients who seek LSC representation, the patient in Rust was not required to forfeit the Government-funded advice when she also received abortion counseling through alternative channels.

It is fundamental that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”  There can be little doubt that the LSC Act funds constitutionally protected expression; and in the context of this statute there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives. This serves to distinguish §504(a)(16) from any of the Title X program restrictions upheld in Rust, and to place it beyond any congressional funding condition approved in the past by this Court.

Congress was not required to fund an LSC attorney to represent indigent clients; and when it did so, it was not required to fund the whole range of legal representations or relationships. The LSC and the United States, however, in effect ask us to permit Congress to define the scope of the litigation it funds to exclude certain vital theories and ideas. The attempted restriction is designed to insulate the Government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge. Where private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the Government’s own interest.

For the reasons we have set forth, the funding condition is invalid.

Justice Scalia, with whom The Chief Justice, Justice O’Connor, and Justice Thomas join, dissenting.

Section 504(a)(16) of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 defines the scope of a federal spending program. It does not directly regulate speech, and it neither establishes a public forum nor discriminates on the basis of viewpoint. The Court agrees with all this, yet applies a novel and unsupportable interpretation of our public-forum precedents to declare §504(a)(16) facially unconstitutional. This holding not only has no foundation in our jurisprudence; it is flatly contradicted by a recent decision that is on all fours with the present case....


The LSC Act is a federal subsidy program, not a federal regulatory program, and “[t]here is a basic difference between [the two].” Regulations directly restrict speech; subsidies do not. Subsidies, it is true, may indirectly abridge speech, but only if the funding scheme is “‘manipulated’ to have a ‘coercive effect’” on those who do not hold the subsidized position.  Proving unconstitutional coercion is difficult enough when the spending program has universal coverage and excludes only certain speech–such as a tax exemption scheme excluding lobbying expenses. The Court has found such programs unconstitutional only when the exclusion was “aimed at the suppression of dangerous ideas.”  Proving the requisite coercion is harder still when a spending program is not universal but limited, providing benefits to a restricted number of recipients, see Rust v. Sullivan  (1991). The Court has found such selective spending unconstitutionally coercive only once, when the government created a public forum with the spending program but then discriminated in distributing funding within the forum on the basis of viewpoint. See Rosenberger v. Rector and Visitors of Univ. of Va. (1995). When the limited spending program does not create a public forum, proving coercion is virtually impossible, because simply denying a subsidy “does not ‘coerce’ belief,” and because the criterion of unconstitutionality is whether denial of the subsidy threatens “to drive certain ideas or viewpoints from the marketplace,” National Endowment for Arts v. Finley. Absent such a threat, “the Government may allocate … funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.”

In Rust v. Sullivan, supra, the Court applied these principles to a statutory scheme that is in all relevant respects indistinguishable from §504(a)(16)....The LSC Act, like the scheme in Rust, does not create a public forum. Far from encouraging a diversity of views, it has always, as the Court accurately states, “placed restrictions on its use of funds.”  Nor does §504(a)(16) discriminate on the basis of viewpoint, since it funds neither challenges to nor defenses of existing welfare law. The provision simply declines to subsidize a certain class of litigation, and under Rust that decision “does not infringe the right” to bring such litigation.  The Court’s repeated claims that §504(a)(16) “restricts” and “prohibits” speech, and “insulates” laws from judicial review, are simply baseless. No litigant who, in the absence of LSC funding, would bring a suit challenging existing welfare law is deterred from doing so by §504(a)(16). Rust thus controls these cases and compels the conclusion that §504(a)(16) is constitutional.

The Court contends that Rust is different because the program at issue subsidized government speech, while the LSC funds private speech. This is so unpersuasive it hardly needs response. If the private doctors’ confidential advice to their patients at issue in Rust constituted “government speech,” it is hard to imagine what subsidized speech would not be government speech. Moreover, the majority’s contention that the subsidized speech in these cases is not government speech because the lawyers have a professional obligation to represent the interests of their clients founders on the reality that the doctors in Rust had a professional obligation to serve the interests of their patients. Even respondents agree that “the true speaker in Rust was not the government, but a doctor.”

The Court further asserts that these cases are different from Rust because the welfare funding restriction “seeks to use an existing medium of expression and to control it … in ways which distort its usual functioning.” This is wrong on both the facts and the law. It is wrong on the law because there is utterly no precedent for the novel and facially implausible proposition that the First Amendment has anything to do with government funding that–though it does not actually abridge anyone’s speech–“distorts an existing medium of expression.” None of the three cases cited by the Court mentions such an odd principle....

Finally, the Court is troubled “because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel.”  That is surely irrelevant, since it leaves the welfare recipient in no worse condition than he would have been in had the LSC program never been enacted....

The only conceivable argument that can be made for distinguishing Rust is that there even patients who wished to receive abortion counseling could receive the nonabortion services that the Government-funded clinic offered, whereas here some potential LSC clients who wish to receive representation on a benefits claim that does not challenge the statutes will be unable to do so because their cases raise a reform claim that an LSC lawyer may not present. This difference, of course, is required by the same ethical canons that the Court elsewhere does not wish to distort. Rather than sponsor “truncated representation,” Congress chose to subsidize only those cases in which the attorneys it subsidized could work freely.  And it is impossible to see how this difference from Rust has any bearing upon the First Amendment question, which, to repeat, is whether the funding scheme is “manipulated’ to have a ‘coercive effect’ on those who do not hold the subsidized position.  No conceivable coercive effect exists.

This has been a very long discussion to make a point that is embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in Rust v. Sullivan. There is no legitimate basis for declaring §504(a)(16) facially unconstitutional....

Exploring Constitutional Conflicts