Valazquez

[lweinberg]

Dear Michael,
   Thr Valazquez/Rust distinction would be more persuasive, perhaps, if the
United States' legitimate interest in population control, which you
identify, could be rationally related to a failure to give needed
counseling about abortion.  It would seem rather obvious that it cannot.
Louise

At 11:03 AM 3/2/01 , you wrote:
>I agree with Chris Schroeder about Velasquez: it is an exceedingly
>unpersuasive opinion. But for slightly different reasons.
>
>I agree with Justice Kennedy that Rust can and should be distinguished on
>the ground that the speech in Rust was government speech. The program in
>Rust is one designed to encourage family planning; the government provides
>doctors not simply to serve the needs of the patients but to foster a
>government purpose of population control. The speech is by the doctor (the
>governmnet's mouthpiece) to the patient. In Velasquez, the speech that is
>being controlled is not speech by the putative government agent (the lawyer)
>to the client, but speech by the client through the lawyer to the courts.
>The message conveyed is the client's message. The limits do not make the
>speech the government's; they simply limit the government's payments for
>particular messages the client might wish to communicate.
>
>Where the Kennedy opinion falls short, I think, is in explaining what is
>wrong with this particular sort of restriction. The program is riddled with
>limitations: LSC lawyers cannot represent criminal defendants, cannot bring
>voting rights cases, etc. None of these were even challenged. Why is the
>welfare limitation different? The plaintiffs argued it is different because
>it is viewpoint discriminatory. That is the crucial doctrinal line under
>Rosenberger and (less clearly) Finley. The Kennedy opinion, however, does
>not adopt that reasoning. (Probably because, on reflection, the limitation
>does not seem really to be viewpoint discriminatory. If others are
>interested, we could talk about the merits of this issue, but the bottom
>line is that the Court did not rely on it.)
>
>If the restriction is not viewpoint discriminatory, it is hard to see why it
>is unconstitutional. Kennedy argues, in part, that the problem is that the
>clients will not be able to find alternative lawyering resources. That
>argument was (correctly) rejected in Maher v. Roe. He also argues, in part,
>that there is some kind of separation of powers problem, due to the fact
>that the courts need lawyers to present cases. That cannot be right. That
>would suggest a general constitutional obligation to fund lawyers in all
>cases. It makes all the restrictions are unconstitutional, and probably
>means that there has to be an infinite budget for the LSC.
>
>Can anyone else make sense of the Velasquez opinion?
>
>Michael McConnell