Volume 74, Number 4

October 1999

Subsidized Speech and the Legal Services Corporation: The Constitutionality of Defunding Constitutional Challenges to the Welfare System

Megan Elizabeth Lewis

In 1996, Congress passed legislation restricting lawyers receiving federal finds through the Legal Services Corporation from undertaking litigation challenging the constitutionality of welfare laws. Two circuits of the court of appeals have since rendered conflicting decisions on the constitutionality of this restriction. In this Note, Megan Lewis argues that this constraint on Legal Services grantees constitutes impermissible viewpoint discrimination under the First Amendment. Lewis’s argument is grounded on the principle that the Constitution limits the government’s power to restrict speech that it subsidizes. She suggests that the public forum doctrine, when analyzed in light of the Supreme Court’s decisions in Rosenberger v. Rector & Visitors of the University of Virginia and Rust v. Sullivan, provides a framework for distinguishing between permissible and impermissible restrictions on Legal Services grantees. Building on the terminology of Professor Robert Post, Lewis asserts that Legal Services lawyers act independently when they serve their clients, rather than as instrumentalities of the state, and hence do not fall within the government’s managerial control. Moreover, the restriction infringes on their clients’ First Amendment right to participate in litigation, itself a protected public forum. Lewis concludes that the restriction impermissibly interferes with protected speech and skews the debate within the public forum created by the subsidy for Legal Services.