Southern Christian Leadership Conference v. Supreme Court of Louisiana

1 REVISED - June 14, 2001

2 IN THE UNITED STATES COURT OF APPEALS

3 FOR THE FIFTH CIRCUIT

4

5 No. 99-30895
6
7
8 SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE,
9 LOUISIANA CHAPTER; ST. JAMES CITIZENS
10 FOR JOBS & THE ENVIRONMENT; CALCASIEU LEAGUE
11 FOR ENVIRONMENTAL ACTION NOW; HOLY CROSS
12 NEIGHBORHOOD ASSOCIATION; FISHERMEN &
13 CONCERNED CITIZENS’ ASSOCIATION OF
14 PLAQUEMINES PARISH; ST. THOMAS RESIDENTS
15 COUNCIL; LOUISIANA ENVIRONMENTAL ACTION
16 NETWORK; LOUISIANA ASSOCIATION OF COMMUNITY
17 ORGANIZATIONS FOR REFORM NOW; NORTH BATON
18 ROUGE ENVIRONMENTAL ASSOCIATION; LOUISIANA
19 COMMUNITIES UNITED; ROBERT KUEHN; CHRISTOPHER
20 GOBERT; ELIZABETH E. TEEL; JANE JOHNSON;
21 WILLIAM P. QUIGLEY; TULANE ENVIRONMENTAL
22 LAW SOCIETY; TULANE UNIVERSITY GRADUATE
23 AND PROFESSIONAL STUDENT ASSOCIATION;
24 INGA HAAGENSON CAUSEY; CAROLYN DELIZIA;
25 DANA HANAMAN,
26
27 Plaintiffs-Appellants,
28
29 versus
30
31 SUPREME COURT OF THE STATE OF LOUISIANA,
32
33 Defendant-Appellee.
34
35
36
37 Appeal from the United States District Court for the
38 for the Eastern District of Louisiana
39
40 May 29, 2001

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41 Before GOODWIN,* GARWOOD and JONES, Circuit Judges.

42

43 GARWOOD, Circuit Judge:

44 On April 16, 1999, the Plaintiffs1 filed a complaint under 42

45 U.S.C. § 1983 in the United States District Court for the Eastern

46 District of Louisiana, alleging that Louisiana Supreme Court Rule

47 XX impermissibly suppresses Plaintiffs’ freedoms of speech and

48 association as protected under the First and Fourteenth Amendments.

49 The complaint seeks injunctive and declaratory relief, costs and

50 attorneys’ fees. Defendant, the Louisiana Supreme Court (LSC),2

51 filed two motions, asking the district court to dismiss the action

52 under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and,

53 in the alternative, to dismiss for lack of standing. Oral argument

54 was held on July 21, 1999, and on July 27, 1999, the district court

55 granted the LSC’s motions. This appeal by Plaintiffs followed. We

56 affirm.

57 Facts and Proceedings Below

*
Circuit Judge of the Ninth Circuit, sitting by designation.
1
The plaintiffs in this case are composed of four general groups:
law professors, law students, community organizations, and student
organizations. For simplicity we will refer to all plaintiffs
collectively as “Plaintiffs.”
2
Although it is well established that the Eleventh Amendment
protects state supreme courts, see Landers Seed Co., Inc. v. Champaign
National Bank, 15 F.3d 729 (7th Cir. 1994), the only defendant in this
case is “the Supreme Court of the State of Louisiana.” But, the LSC has
refrained from advancing any argument that the Eleventh Amendment bars
suit at this stage of the case, even after inquiry at oral argument.

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58 In 1971, the LSC adopted the precursor to what is now Rule XX,

59 which for the first time allowed the limited practice of law by

60 students as part of supervised clinical education programs in

61 Louisiana law schools. The rule allowed eligible law students in

62 certain circumstances to appear in court or before administrative

63 tribunals in a representative capacity on behalf of the state, its

64 subdivisions, or any indigent person. In 1988, the LSC amended

65 Rule XX to clarify that the rule also allowed students to represent

66 indigent community organizations. See Louisiana Supreme Court Rule

67 XX (1988). It is the LSC's most recent set of amendments to Rule

68 XX that prompted the current suit. The rule as it exists now, and

69 as it has always existed, operates only to set forth the limited

70 circumstances under which unlicensed law students may engage in the

71 practice of law in Louisiana; it has no other reach.

72 Over the years, several Louisiana law school clinics,

73 including the Tulane Environmental Law Clinic (TELC), have supplied

74 legal advice and representation to numerous individuals and various

75 community organizations. In 1996, TELC agreed to represent St.

76 James Citizens for Jobs and the Environment (St. James Citizens),

77 a group of approximately one hundred low-income and working-class

78 residents of St. James Parish. St. James Citizens was formed in

79 response to a proposal by Shintech, a chemical manufacturer, to

80 build a chemical plant in Convent, a small town in St. James

81 Parish. The group was dedicated to resisting the construction of

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82 the Shintech plant in their community and to raising public

83 awareness of community environmental and health concerns related to

84 the proposed plant. TELC represented St. James Citizens in a

85 variety of ways: at hearings before the Louisiana Department of

86 Environmental Quality, in state court, and by filing objections to

87 the proposed plant with the EPA. Eventually the resistence of the

88 local community to the new plant drove Shintech to reject Convent

89 as its site, and the plant was located elsewhere in Louisiana.

90 According to the Plaintiffs’ complaint,3 TELC’s representation

91 of St. James Citizens induced significant criticism of the clinic

92 from political and business leaders in Louisiana. The complaint

93 alleges that various Louisiana business and political leaders,

94 including Governor Foster, tried to convince Tulane University to

95 curtail the endeavors of TELC. Tulane University proved

96 unresponsive to this pressure, and so, according to the complaint,

97 the “powerful political and business interests” opposed to the

98 clinic turned their attention to the LSC. The complaint alleges

99 that these political and business interests urged the LSC to

100 prevent TELC and other clinics from continuing to aid community

101 groups in giving voice to environmental and health concerns. The

102 Plaintiffs allege several specific incidents that they claim

3
For the purposes of a motion to dismiss for failure to state
a claim, we assume that all of the allegations in the complaint are
true. Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir.
1999).

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103 document the political pressure exerted on both Tulane and the LSC,

104 including phone calls from Governor Foster to the President of

105 Tulane University, statements of Governor Foster at a meeting of

106 the New Orleans Business Council requesting assistance in

107 curtailing the efforts of TELC, various public criticisms of TELC

108 by Governor Foster, a letter from a chamber of commerce

109 organization urging the LSC to eliminate the TELC because the

110 faculty and students involved were “in direct conflict with

111 business positions,” and letters from various business

112 organizations, including the Business Council, the Louisiana

113 Association of Business and Industry, and The Chamber/Southwest

114 Louisiana, urging the LSC to eliminate TELC.

115 Allegedly in response to the concerns of the Governor and

116 business groups, in the fall of 1997 the LSC launched an official

117 investigation into the activities of TELC and Louisiana’s other law

118 school clinics. The results of this investigation have not been

119 made public, but the Plaintiffs allege in their complaint that two

120 Justices of the LSC have disclosed that the investigation did not

121 reveal any inappropriate or unethical behavior by any person

122 associated with any Louisiana law school clinic.

123 The LSC did in fact alter its rule concerning student

124 practitioners, and on March 22, 1999, the Court announced the

125 amendments that established the current form of Louisiana Supreme

126 Court Rule XX. The amendments became effective April 15, 1999, and

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127 by their terms “shall not impact or apply to any cases, and/or the

128 representation of any clients, in which the representation

129 commenced prior to the effective date of the amendments.” The

130 amendments to Rule XX altered the existing rule in two ways that

131 are relevant to the present case. First, the rule’s indigence

132 requirements were tightened. The new rule allows representation of

133 individuals or families only if their annual income does not exceed

134 200% of the federal poverty guidelines. The rule also now requires

135 that any indigent community organization that wishes to obtain

136 representation from a clinic must certify in writing its inability

137 to pay for legal services, and at least fifty-one percent of the

138 members of the organization must meet the income guidelines. The

139 second major change to Rule XX involves the community outreach

140 efforts of the law school clinics. Under the new rule, clinical

141 student practitioners are prohibited from representing in the role

142 of attorneys an otherwise qualified individual or organization if

143 any person associated with the clinic initiated contact with that

144 individual or organization for purposes of that representation.4

4
Louisiana Supreme Court Rule XX section 10 now reads:
“...no student practioner shall appear in a
representative capacity pursuant to this rule if
any clinical program supervising lawyer,
staffperson, or student practitioner initiated in-
person contact, or contact by mail, telephone or
other communications medium, with an indigent
person or indigent community organization for the
purpose of representing the contacted person or
organization.”
The Commentary to section 10 reads, in relevant part,
“...in furtherance of the Court's policy against

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145 In response to the LSC’s new Rule XX, the Plaintiffs filed this

146 lawsuit on April 16, 1999.

147 In an opinion dated July 27, 1999, the district court

148 dismissed the case for lack of standing and for failure to state a

149 claim. The district court held that the complaint failed to

150 establish the deprivation of any cognizable federal right. The

151 court found that the indigence requirements did not implicate any

152 freedom of association or speech, and that the limitation of

153 clinical services to the poor was rationally related to a

154 legitimate government purpose. Southern Christian Leadership

155 Conference v. Supreme Court, 61 F.Supp.2d 499, 511 (E.D. La. 1999).

156 The court noted that the LSC has broad power to regulate student

157 practice, and held that in this context, the solicitation

solicitation of legal clients generally, the
ethical prohibitions against attorney
solicitation, and the Court's view that law
students should not be encouraged to engage in the
solicitation of cases, Section 10, as amended,
prohibits a student practitioner from representing
a client who has been the subject of targeted
solicitation by any law clinic representative.”
(emphasis added).
At oral argument, the Plaintiffs asserted that the current version of
the rule prevents clinics from engaging in any kind of advertising or
outreach. Our interpretation of this rule, however, is that the clinics
must refrain from all targeted solicitation, and that initiating in-
person or any other kind of direct contact with a potential client
prohibits student representation in any matter related to the initiated
contact. While the rule certainly discourages solicitous phone calls,
letters, and in-person offers of legal services, our reading of the rule
would not, for instance, prevent a clinic from merely distributing a
generalized leaflet or flyer indicating that the clinic's legal services
are available for those who meet the income requirements.

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158 restrictions of Rule XX did not violate the First Amendment. The

159 court reasoned: “While free speech rights do exist in this area,

160 they are precariously perched when balanced against the imperatives

161 of protecting the public and monitoring professional ethics.

162 Particularly where student solicitation of potential clients is

163 involved, concern for protecting the public grows considerably.”

164 Id. at 512. Applying rational basis review, the court held that

165 the solicitation restrictions were justified because the

166 restrictions were rationally related to the state’s legitimate

167 interest in protecting the public and monitoring professional

168 ethics. Id. The court also dismissed the Plaintiffs’ claims of

169 viewpoint discrimination, holding that the political motivations

170 of the LSC could not transform an otherwise permissible action into

171 a constitutional violation. Id. at 513. Accordingly, the district

172 court dismissed the Plaintiffs’ claims in their entirety. This

173 appeal followed.

174 Discussion

175 We review de novo a district court’s dismissal for failure to

176 state a claim under Rule 12(b)(6). Leffall v. Dallas Independent

177 School Dist., 28 F.3d 521, 524 (5th Cir. 1994). In considering a

178 motion to dismiss, the complaint should be construed in favor of

179 the plaintiff, and all facts pleaded should be taken as true.

180 Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir. 1999).

181 Motions “to dismiss for failure to state a claim [are] 'viewed with

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182 disfavor, and [are] rarely granted.'” Tanglewood East Homeowners

183 v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988)

184 (quoting Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981)). A

185 Rule 12(b)(6) dismissal will not be affirmed “unless it appears

186 beyond doubt that the plaintiff can prove no set of facts in

187 support of his claim which would entitle him to relief.” Conley v.

188 Gibson, 78 S.Ct. 99, 101 (1957). However, “conclusory allegations

189 or legal conclusions masquerading as factual conclusions will not

190 suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied

191 Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993). In the context of

192 a 12(b)(6) motion in a section 1983 suit, the focus should be

193 “whether the complaint properly sets forth a claim of a deprivation

194 of rights, privileges, or immunities secured by the Constitution or

195 laws of the United States caused by persons acting under color of

196 state law.” Fontana v. Barham, 707 F.2d 221, 225 (5th Cir. 1983).

197 If there is no deprivation of any protected right the claim is

198 properly dismissed. Id.

199 The Plaintiffs make a variety of claims, but their challenges

200 to Rule XX fall into two basic groups. First, they claim that the

201 rule is invalid on its face as an impermissible restriction of the

202 First Amendment freedoms of the individuals and organizations that

203 are parties to this suit. This first type of claim encompasses

204 challenges to both of the substantive changes the LSC has made in

205 Rule XX: the new, more specific indigence requirements as well as

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206 the restriction on student representation in the role of an

207 attorney of any group or individual whose repreentation has been

208 solicited by any person associated with the clinic.

209 The Plaintiffs’ second general claim is that regardless of

210 whether Rule XX, on its face, restricts speech in violation of the

211 First Amendment, the rule was enacted in retaliation for the

212 clinics’ and their clients’ political speech and advocacy in the

213 Shintech matter, and is therefore an impermissible form of

214 viewpoint discrimination. The Plaintiffs’ claim that the LSC

215 amended Rule XX in direct response to pressure from business

216 interests who were opposed to the TELC’s environmental outreach and

217 advocacy. This second claim depends heavily on the motivation of

218 the LSC in enacting Rule XX.

219 In general, the LSC challenges the standing of all of the

220 Plaintiffs in this suit, and alleges that none of the parties have

221 suffered an injury in fact sufficient to justify this challenge to

222 Rule XX. In response to the first set of claims, the LSC points out

223 that the indigence requirements are not unlike those of several

224 other states and the federal government, that the income level that

225 disqualifies individuals from clinic representation is

226 significantly higher than the standard used by many states and the

227 federal Legal Services Corporation, and that since none of the

228 client organizations are entitled to pro bono representation in

229 civil cases there has been no actionable deprivation of any

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230 protected right.

231 The LSC responds to the Plaintiffs’ attack on the solicitation

232 restrictions by arguing that there is no right of non-lawyers to

233 represent others in litigation, that the litigation activities the

234 clinics engage in cannot be considered “speech” and that therefore

235 no party’s “speech” or other rights have been impacted. The LSC

236 responds to the viewpoint discrimination claims in much the same

237 way, arguing that Rule XX does not affect any party’s rights of

238 association or free speech. The LSC argues that although attorneys

239 may have speech and associational freedoms that protect pro bono

240 representation of clients for political reasons, lay persons and

241 law students have no such rights. Since Rule XX does not affect

242 the ability of any attorney to represent pro bono clients, the LSC

243 argues, the rule does not implicate any protected speech or

244 associational interests.

245 Thus, this case involves four issues: (1) whether the

246 Plaintiffs have standing; whether Plaintiffs have stated a claim

247 that Rule XX, on its face, violates protected freedoms of speech

248 and association by (2) the tightening of the indigence requirements

249 or by the (3) imposition of solicitation restrictions on student

250 representation in the role of an attorney; and (4) whether the

251 LSC’s promulgation of the rule constitutes actionable viewpoint

252 discrimination in this context.

253

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254 Standing

255 All of the Plaintiffs in this case fall into one of four

256 categories. The first group is comprised of community

257 organizations and individuals that have either been clients of the

258 student clinics or who are concerned that they will not be able to

259 obtain representation from the clinics in the future. The second

260 consists of law professors and clinical law instructors who oversee

261 or are otherwise involved in the student clinics. The third group

262 consists of three Tulane University law students, two third year

263 students who were “student practitioner” members of TELC during the

264 1998-99 academic year and one second year student who had been

265 accepted as a TELC member and “student practitioner” for the 1999-

266 2000 academic year. The fourth and last group consists of two

267 student organizations, the Tulane Environmental Law Society (an

268 organization of students that includes some of the students

269 enrolled in the Tulane Environmental Law Clinic) and the Tulane

270 Graduate and Professional Student Association.5 Neither Tulane

271 University nor TELC is a party to the suit; nor is any other

272 university or law clinic.

273 To satisfy the standing requirement, a party must establish

274 basic three elements. First, the plaintiff must have suffered an

275 injury in fact. An “injury in fact” is an invasion of a legally

5
Another individual party plaintiff below (Shearer) did not join
in this appeal; consequently, we disregard him.

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276 protected interest which is both (a) concrete and particularized,

277 and (b) actual or imminent and not conjectural or hypothetical.

278 Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992).

279 Second, there must be a causal connection between the injury and

280 the conduct complained of–in other words, the injury must be

281 traceable to the defendant and not the result of the independent

282 action of a third party. Id. Third, the injury must be

283 redressible; it must be likely, as opposed to merely speculative,

284 that a favorable decision will redress the plaintiff’s injury. Id.

285 The party invoking federal jurisdiction bears the burden of

286 establishing these elements, but “[a]t the pleading stage, general

287 factual allegations of injury resulting from the defendant’s

288 conduct may suffice, for on a motion to dismiss we ‘presum[e] that

289 general factual allegations embrace those specific facts that are

290 necessary to support the claim.’” Id. (quoting Lujan v. National

291 Wildlife Federation, 101 S.Ct. 3177, 3189 (1990)).

292 According to the complaint, Rule XX directly regulates the

293 operations of law school clinics in Louisiana and significantly

294 alters the ways in which those clinics can permissibly function.

295 Further, the complaint alleges that under the new rule, several of

296 the client organizations will hereafter be unable to obtain

297 representation from the clinics. Given the expansive and

298 deferential way in which we construe pleadings at this stage of a

299 suit, we find that Rule XX has enough of an impact on at least some

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300 of the Plaintiffs so as to constitute an injury in fact. At least

301 some of the Plaintiffs have standing to bring each type of claim

302 currently before the court. Accordingly, we next address the

303 merits of the Plaintiffs' claims. We begin with the Plaintiffs'

304 claim that the indigence and solicitation restrictions, on their

305 face, improperly infringe on the Plaintiffs' rights under the First

306 Amendment.

307 Indigence Requirements

308 Rule XX now requires that clinical student practitioners

309 represent only those individuals who are “indigent,” which is

310 defined as having an annual income that is less than 200% of the

311 current federal poverty guidelines as established by the Department

312 of Health and Human Services. Louisiana Supreme Court Rule XX,

313 section 4. As the commentary to Rule XX points out, applying the

314 current federal poverty standards the clinics are permitted to

315 represent an individual if his annual income is less than $16,480,

316 and may represent a family of four if the family’s annual income is

317 less than $33,340. Id. Contrary to the Plaintiffs’ assertions,

318 the rule does not require individuals to provide detailed financial

319 information to obtain representation–the rule simply states that

320 the clinics may only represent individuals who fall within the

321 income guidelines. The Plaintiffs claim that this aspect of the

322 rule subjects their clients to invasive discovery intended to

323 obtain embarrassing financial information. However, the LSC has

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324 always required that student practitioners represent only

325 “indigent” community organizations. See Louisiana Supreme Court

326 Rule XX, section 3 (1988). Also, the assertion that improper

327 discovery requests will dramatically increase is clearly based

328 almost entirely on speculation, and in any event can be adequately

329 addressed in any particular instance in which it does arise. This

330 part of the rule does not, on its face, restrict speech in any way

331 other than to limit clinical representation to clients who are

332 poor.

333 The indigence requirements alone implicate no speech

334 interests, and are simply subject to Equal Protection requirements.

335 Classifications based on wealth alone are not subject to strict

336 scrutiny. See San Antonio Independent School District v.

337 Rodriguez, 93 S.Ct. 1278, 1293-94 (1973). Strict scrutiny,

338 therefore, is inappropriate in a facial challenge of this part of

339 Rule XX. Under rational basis review, the indigence requirements

340 are valid. They are rationally related to one of the stated

341 purposes of Rule XX: providing representation to those who cannot

342 afford it for themselves. See Louisiana Supreme Court Rule XX,

343 section 1. Because the indigence requirements do not, on their

344 face, implicate any speech interests the district court was correct

345 to dismiss this part of the Plaintiffs’ challenge to Rule XX.

346 Solicitation Restrictions

347 The Plaintiffs argue that section 10 of Louisiana Supreme Court

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348 Rule XX is an impermissible restriction on their rights of free speech

349 and association protected by the First Amendment. While this may be a

350 closer question than the challenge to the indigence requirements, we

351 conclude that section 10 does not impermissibly restrict the Plaintiffs'

352 speech.

353 The First Amendment prohibits the government from enacting

354 solicitation restrictions that prevent attorneys from offering their

355 services pro bono to individuals or groups. For example, the Supreme

356 Court held in NAACP v. Button, 83 S.Ct. 328 (1963), that Virginia could

357 not prohibit the NAACP from advising individuals of their legal rights

358 and referring those individuals to lawyers. And, in In re Primus, 98

359 S.Ct. 1893 (1978), the Court held that a lawyer could not be

360 constitutionally subjected to discipline for informing members of the

361 public of their legal rights and offering free legal services on behalf

362 of the ACLU. The Plaintiffs cite both Button and Primus for the

363 proposition that all pro bono legal advocacy (even when conducted by

364 persons who are not licenced attorneys) is protected speech that cannot

365 be infringed without a compelling state interest.

366 A careful examination of those decisions reveals, however,

367 significant differences from the restrictions in the present case. For

368 example, in both Button and Primus, the solicitous speech was itself

369 prohibited. In Button, under Virginia's statute solicitation was a

370 misdemeanor, and the penalties for solicitation included imprisonment

371 for up to six months. Button, 83 S.Ct. at 334 n.7 (citing Va. Code §

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372 54.82 (1958)). Similarly, Edna Primus's letter soliciting a client on

373 behalf of the ACLU was, in and of itself, a violation of the South

374 Carolina bar's disciplinary rules. See Primus, 98 S.Ct. at 1898-1900.

375 In both cases, the solicitous speech itself was prohibited, and engaging

376 in such speech subjected the speaker to criminal or disciplinary

377 sanctions.

378 In contrast, nothing in Rule XX prohibits or prevents speech of any

379 kind. Rule XX does not prevent the clinics or their members from

380 engaging in outreach, or even from contacting particular clients,

381 advising them of their rights, and offering and then proceeding to

382 represent those clients. The rule only prohibits the non-lawyer student

383 members of the clinics from representing as attorneys any party the

384 clinic has so solicited. Since the rule does not directly regulate

385 speech and the ability of unlicensed students to practice law need not

386 exist at all, it is inaccurate to describe the restrictions in Rule XX

387 as impairing or prohibiting speech. No one is required to participate

388 in any of the clinical programs, and even if someone chooses to, they

389 are not punished for or prohibited from speaking. At most, Rule XX

390 indirectly discourages speech—by refusing the educational experience of

391 acting as an attorney in a particular matter to unlicensed student

392 practitioners in clinics whose members or employees engaged in

393 solicitation of that matter.

394 The impact of Rule XX’s section 10 (see note 4, supra) on the

395 educational experience is far from extreme. The students are not

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396 prohibited from or restricted in working on clinic solicited cases as

397 paralegals, as legal (or factual) researchers, or as trial assistants,6

398 and they are not subject to discipline for contacting potential clients

399 and informing them of both their rights and that free legal

400 representation is available from the clinics. And, targeted

401 solicitation only implicates the students’ representation as attorneys

402 of that particular client—students would remain free to represent as an

403 attorney other clients who were not solicited by the clinic.7 These

404 limitations are a far cry from the criminal and disciplinary sanctions

405 invalidated by the Supreme Court in Button and Primus.8

406 The other major difference between this case and Button and Primus

407 is, of course, that the student practitioners are not licensed members

408 of the bar. The LSC has a heightened interest in overseeing the

6
Indeed, the students are barred only from serving in an
attorney’s representative capacity by Rule XX, and could perform a wide
variety of legal related work or research, so long as it was reviewed
and any formal documents (such as pleadings, motions, agreements or the
like) were actually submitted by a licensed supervising attorney.
Nothing in Rule XX (or its challenged amendments) in any way
broadens the categories of conduct which constitute the practice of law
so as to require one engaging in same to either be a licensed attorney
or to come under the exemption for student practitioners provided by
Rule XX since 1971.
7
And, of course, the clinic's supervising attorneys could
continue to represent any client they wish, including clients who had
been solicited.
8
The Court in Primus did not hold that all solicitation
restrictions were invalid. Instead, the Court noted that in some
situations solicitation restrictions on practicing attorneys would be
permissible, so long as those restrictions were narrowly tailored and
did not impermissibly abridge associational freedoms. Primus, 98 S.Ct.
at 1908.

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409 practice of law by non-attorneys in Louisiana. Indeed, the LSC need not

410 have ever allowed–and did not at all until relatively recently–non-

411 attorneys to participate in the actual practice of law in Louisiana.

412 The ability of students to represent clients as attorneys in legal

413 matters is entirely the relatively recent creation of the LSC and

414 continues to exist entirely at the LSC’s complete discretion.9 The

415 clinical programs are an educational benefit that the LSC has decided

416 to grant to Louisiana law students.

417 Rule XX's solicitation restrictions do not prohibit or punish

418 speech, they merely limit one aspect of the participation of unlicensed

419 students in clinical education programs–namely doing what only an

420 attorney can otherwise do–to representing as attorneys nonsolicited

421 clients. And, this limitation is entirely viewpoint neutral.10 Rule XX

422 is significantly different from the criminal or quasi-criminal

423 prohibitions of speech invalidated by the Supreme Court in Button and

424 Primus. We conclude that the district court was correct to subject

425 section 10 of Rule XX to rational basis review. The stated rationale

9
Indeed, the regulation of the practice of law in Louisiana is
uniquely within the power of the Louisiana courts: “The right to
practice law in the state courts is not a privilege or immunity of a
citizen of the United States. It is limited to those who are licensed
for that purpose.... The supreme court possesses the power, irrespective
of the legislature, to determine the qualifications of those who apply
for admission to practice law.” State v. Kaltenbach, 587 So.2d 779, 784
(La.App. 3 Cir. 1991) (citing State v. Rosborough, 94 So. 858 (1922)),
writ denied, 592 So.2d 1332 (1992).
10
On its face, section 10 of Rule XX is unquestionably viewpoint
neutral. We address below the Plaintiffs' claim that the rule was,
nevertheless, motivated by a desire to suppress a particular viewpoint.

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426 for section 10 is to further “the Court's policy against solicitation

427 of legal clients generally, the ethical prohibitions against attorney

428 solicitation, and the Court's view that law students should not be

429 encouraged to engage in the solicitation of cases....” Louisiana

430 Supreme Court Rule XX section 10, Commentary. Section 10 is rationally

431 related to the LSC's goal of discouraging solicitation generally. The

432 nature of the solicitation provision, combined with the unique status

433 of the clinics' student practitioners, convince us that section 10 of

434 Rule XX is a constitutional exercise of the LSC's regulatory power.

435 By allowing unlicensed law students at clinics to practice law

436 under limited conditions, the LSC furthers two goals: providing legal

437 representation to poor Louisianians and providing educational

438 opportunities to Louisiana law students. See Louisiana Supreme Court

439 Rule XX section 1 (“As one means of providing assistance to clients

440 unable to pay for [legal] services ... the following rule is adopted.”).

441 In Legal Services Corporation v. Velazquez, 121 S.Ct. 1043, 1049-51

442 (2001), the Supreme Court invalidated a congressional funding

443 restriction that prohibited Legal Services Corporation attorneys from

444 participating in cases attempting to reform or challenge a state or

445 federal welfare system. The Court held that the restrictions

446 unconstitutionally regulated private expression in an arena in which

447 Congress had funded Legal Services Corporation attorneys to represent

448 indigent litigants. Velazquez, 121 S.Ct. at 1051-52. A major concern

449 of the Court was that the restrictions would do more than simply prevent

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450 representation in certain classes of cases; the restrictions, the Court

451 noted, would interfere with attorneys' advocacy of their clients by

452 preventing them from making certain arguments in particular cases:

453 "Restricting [Legal Services Corporation] attorneys in advising their

454 clients and in presenting arguments and analyses to the courts distorts

455 the legal system by altering the traditional role of the attorneys....

456 By seeking to prohibit the analysis of certain legal issues and to

457 truncate presentation to the courts, the enactment under review

458 prohibits speech and expression upon which courts must depend for the

459 proper exercise of the judicial power." Id. at 1050-51. The fact that

460 a Legal Services Corporation lawyer could withdraw from a representation

461 if a problem arose did not, according to the Court, alleviate the

462 problems the rule caused. Id. at 1051.

463 In Velazquez, the Court noted that “Congress was not required to

464 fund a [Legal Services Corporation] attorney to represent indigent

465 clients; and when it did so, it was not required to fund the whole range

466 of legal representations or relationships. The [Corporation] and the

467 United States, however, in effect ask us to permit Congress to define

468 the scope of the litigation it funds to exclude certain vital theories

469 and ideas.” Velazquez, 121 S.Ct. at 1052. In contrast to the

470 regulations in Velazquez, Rule XX does not limit speech by the clinics'

471 members—any person associated with a clinic can engage in any sort of

472 outreach activity and can even solicit individual clients. Indeed, the

473 clinics are allowed to represent clients so solicited, with one

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474 caveat—the students, who are not lawyers, may not represent, as lawyers,

475 any client so solicited. Unlike the regulations struck down in

476 Velazquez, Rule XX imposes no restrictions on the kind of

477 representations the clinics can engage in or on the arguments that can

478 be made on behalf of a clinic client. Rule XX applies to all clinic

479 students equally, and is entirely viewpoint neutral. Nothing in Rule

480 XX implicates the proper functioning of the judicial system. None of

481 the special considerations present in Velazquez apply in the context of

482 this case.

483 The parties in Button and Primus were licenced attorneys, the

484 student clinical practitioners are not. Instead, they are the

485 beneficiaries of an educational program that the LSC has decided to

486 permit and which the LSC could end at will. Moreover, unlike the

487 criminal sanctions and disciplinary penalties involved in Button and

488 Primus, the restrictions imposed by Rule XX do not regulate or prohibit

489 speech directly. And, none of the special concerns mentioned by the

490 Court in Velazquez are implicated by Rule XX. The First Amendment does

491 not prohibit the LSC from imposing this viewpoint neutral limit on the

492 scope of unlicensed law students' educational use, as attorneys, of the

493 Louisiana courts.

494 Viewpoint Discrimination and Retaliation

495 Our holding that the solicitation requirements are facially

496 permissible does not end our inquiry. The Plaintiffs also claim that

497 the enactment of Rule XX constitutes an unconstitutional attempt by the

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498 Court to suppress political speech it has deemed undesirable.

499 Specifically, the Plaintiffs allege that the Governor and various

500 business interests pressured the Court into enacting Rule XX because of

501 the success of the clinics and community organizations in their attempts

502 to resist the construction of chemical plants in their communities. The

503 Plaintiffs argue that even if Rule XX is an otherwise permissible

504 restriction, the Court's allegedly suppressive motivation in enacting

505 Rule XX transforms the rule into an unconstitutional action. Since the

506 rule is facially viewpoint neutral and is not otherwise constitutionally

507 objectionable, this claim depends entirely on the effect the Court's

508 alleged motivation has on the constitutionality of Rule XX.

509 Although the jurisprudence in this area is less than clear, there

510 is some support for the Plaintiffs' contentions that the motivation of

511 a state actor can transform an otherwise permissible action into a

512 violation of the First Amendment. The Supreme Court has held that the

513 motivation of a legislature or other state actor can be the primary

514 factor in the constitutional analysis of state action in other areas of

515 First Amendment law, such as cases involving the Establishment Clause

516 or the termination of public employees because of protected speech.

517 See, e.g., Edwards v. Aguillard, 107 S.Ct. 2573 (1987) (striking down

518 a state statute requiring equal time for “creation-science” based on the

519 motivation of the legislature as indicated in the statute's legislative

520 history); Perry v. Sindermann, 92 S.Ct. 2694, 2698 (1972)(finding a suit

521 by a junior college professor whose contract had not been renewed,

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522 allegedly because of the professor's public criticism of the Board of

523 Regents, to present a “bona fide constitutional claim”).

524 In Cornelius v. NAACP Legal Defense and Education Fund, 105 S.Ct.

525 3439 (1985), the Supreme Court upheld as against a facial challenge an

526 executive order which limited participation in a charity drive among

527 federal employees (the “CFC”) to organizations that provided direct

528 health and welfare services to individuals or their families. The order

529 excluded legal defense and political advocacy groups. The district

530 court and the court of appeals had sustained the facial challenge, but

531 had not addressed the argument of the plaintiffs (respondents), the

532 NAACP Legal Defense & Education Fund and other legal defense funds, that

533 they were excluded from the CFC because the government disagreed with

534 their viewpoints. The Supreme Court reversed the decisions of the lower

535 courts facially invalidating the order. The court went on to state,

536 however:

537 “While we accept the validity and reasonableness of the
538 justifications offered by petitioner for excluding advocacy
539 groups from the CFC, those justifications cannot save an
540 exclusion that is in fact based on the desire to suppress a
541 particular point of view.”
542 . . . .
543
544 “. . . the purported concern to avoid controversy excited by
545 particular groups may conceal a bias against the viewpoint
546 advanced by the excluded speakers. . . .Organizations that
547 do not provide direct health and welfare services, such as
548 the World Wildlife Fund, the Wilderness Society, and the
549 United States Olympic Committee, have been permitted to
550 participate in the CFC. . . .the issue whether the Government
551 excluded respondents because it disagreed with their
552 viewpoints was neither decided below nor fully briefed before
553 this Court. We decline to decide in the first instance
554 whether the exclusion of respondents was impermissibly

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555 motivated by a desire to suppress a particular point of view.
556 Respondents are free to pursue this contention on remand.”
557 Id. at 3454.
558
559 This language in Cornelius provides the Plaintiffs with some

560 support for their claim, but is not controlling in the present context.

561 Cornelius involved a rule which actually prevented certain groups from

562 speaking. The executive order in Cornelius was viewpoint neutral, but

563 it did exclude speakers from a nonpublic forum on the basis of both

564 their identity and the content of their speech. Id. at 3451. Those

565 speakers were shut out of a forum of which they might otherwise have

566 availed themselves, and in that way the order directly regulated speech

567 within that forum. Other speakers, such as the Wilderness Society, were

568 not excluded. Rule XX, in contrast, does not create a forum for

569 speech,11 does not exclude any speaker from any opportunity to speak, and

570 does not in any way prohibit or punish speech. Nor does Rule XX in any

571 way distinguish between speakers on the basis of the content of their

572 message. There is no “picking and choosing” here. Instead, the

573 Plaintiffs allege, the rule makes it somewhat more difficult to obtain

574 and to provide free legal services. While Cornelius does indicate that

575 an individual or group cannot be excluded from even a nonpublic forum

576 on the basis of viewpoint, we do not agree with the Plaintiffs that the

577 case requires us to examine the motivation underlying every governmental

578 decision for viewpoint neutrality.

11
Nor do Plaintiffs argue that Rule XX creates any kind of forum
for speech.

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579 Additionally, the Plaintiffs' assertion that Cornelius stands for

580 the proposition that the motivation or purpose of a state actor can turn

581 any state action into an unconstitutional suppression of speech or

582 viewpoint is belied by the Court's decision in Rust v. Sullivan, 111

583 S.Ct. 1759 (1991). In Rust, the Supreme Court upheld Department of

584 Health and Human Services regulations that attached several conditions

585 on the receipt of federal funds for Title X projects. Among the

586 regulations were requirements that Title X projects refrain from

587 providing counseling concerning abortion as a method of family planning,

588 and programs that received Title X money were expressly prohibited from

589 referring a pregnant woman to an abortion provider, even upon request.

590 Rust, 111 S.Ct. at 1765 (citing 42 C.F.R. § 59.8(a)-(b) (1989)). The

591 Supreme Court held that the government was entitled to “refus[e] to fund

592 activities, including speech, which are specifically excluded from the

593 scope of the project funded.” Id. at 1773. The restrictions on speech

594 upheld in Rust explicitly prohibited the expression of a particular

595 viewpoint by program participants. In later cases, the Court has

596 limited the holding of Rust to occasions in which the government itself

597 is the speaker, or to “instances, like Rust, in which the government

598 'used private speakers to transmit information pertaining to its own

599 program.'” Velazquez, 121 S.Ct. at 1048 (quoting Rosenberger v. Rector

600 and Visitors of Univ. of Va., 115 S.Ct. 2510, 2519 (1995)).

601 There are differences between Rust and the present case. The LSC

602 is not itself a speaker–there is no government message that the clinics

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603 are relaying to their clients. And, Rule XX does not clearly qualify

604 as an attempt by the LSC to use private speakers to transmit information

605 pertaining to its own program. On the other hand, the LSC need not have

606 allowed any unlicensed student to serve in an attorney representative

607 capacity. The Court has chosen to allow the unlicensed student clinic

608 members to engage in the practice of law in Louisiana under certain

609 conditions. Although the court is not funding the clinics, the LSC is

610 supporting those clinics by its allowance of unlicensed students'

611 representation in the role of attorneys of clinic clients—an allowance

612 that the Court was under no obligation whatsoever to grant.

613 The analogy between Rust and the present case is an imperfect one,

614 but we think that Rust, while not controlling, informs our current

615 decision. The fact that the state decides to fund or support a program

616 does not give the government carte blanche to restrict the rights of

617 program participants. See Velazquez, 121 S.Ct. at 1049-50; Rust, 111

618 S.C. at 1776. But, at the same time, the LSC must be able to define the

619 scope of the law practice that unlicensed students undertake as part of

620 the clinical programs. We accordingly turn to an examination of the

621 effects of Rule XX and the alleged motivation of the LSC in its

622 enactment. The issue here is whether the Plaintiffs' allegations of

623 suppressive purpose, if true, would render Rule XX unconstitutional.

624 The Plaintiffs have alleged facts that may arguably support their

625 claim that the LSC reacted to pressure from the Governor and business

626 interests who bore the TELC significant animus. But the Plaintiffs'

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627 allegations of improper purpose, while extensive, do not focus on the

628 LSC. Although the Plaintiffs have certainly alleged animus on the part

629 of the Governor and various business groups, there is no express

630 allegation, nor do the facts alleged tend to suggest, that the LSC

631 itself bore any particular ill will towards any of the Plaintiffs.

632 Instead, the complaint in essence alleges that the LSC gave in to

633 pressure from others to restrict the activities of the student clinics.

634 The Plaintiffs allege that Rule XX was enacted to silence the TELC, but

635 the rule is of wholly general and prospective application–it applies to

636 all student legal clinics in Louisiana, not just TELC. Plaintiffs can

637 be understood to have asserted that the LSC ultimately bore some

638 character of ill will towards the TELC, at least on account of its

639 activities having generated unwanted political pressure on the LSC, and

640 that the LSC accordingly desired to defuse the political pressure, and

641 to diminish the likelihood of the recurrence of similar activities in

642 the future, by enacting the challenged amendments to Rule XX. Such an

643 alleged motivation on the part of the LSC does not, however, transform

644 Rule XX into an unconstitutional state action.

645 The fundamental purpose behind the First Amendment is to promote

646 and protect the free expression of ideas, unfettered by government

647 intrusion. We are convinced, however, that Rule XX will produce no

648 legally significant chilling effect on the expressive speech of any of

649 the Plaintiffs in this case. Rule XX does in effect impose some

650 restrictions on clinic activities, and, according to the complaint, the

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651 solicitation restrictions and the new, more strict indigence

652 requirements will result in a decrease in the availability of clinical

653 representation for some of the Plaintiffs. Some of the client

654 organizations in this case may indeed find it somewhat more difficult

655 to qualify for clinic representation in the wake of Rule XX, and the

656 clinics themselves will either be forced to change their educational

657 model or to refrain from soliciting particular clients. But, even this

658 minimal impact on the clinics and the client organizations is

659 “suppressive” only in comparison to the earlier version of Rule XX.

660 This is a crucial distinction. We conclude that a refusal to promote

661 private speech is not on a par with a regulation that prohibits or

662 punishes speech, or which excludes a speaker from a public or nonpublic

663 forum.12 Rather than stamping out or suppressing private speech, the

664 LSC's action has reduced the availability of support for such speech,

665 and the LSC–the highest judicial body in Louisiana exercising its

666 undisputed power and responsibility–has reduced this support by an

667 across-the-board, wholly prospective and viewpoint neutral general rule.

668 We are convinced that the new version of Rule XX will not silence any

669 group or individual's speech except to the extent that it ceases to

670 support private speech. The United States Constitution does not require

671 the LSC to continue its support for the clinical education programs

672 until its motives are shown to be pure. The LSC need not have ever

12
Nor does Rule XX impermissibly interfere with the content of
the private speech promoted as in Velazquez.

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673 allowed unlicensed students to practice law in Louisiana, and indeed did

674 not do so until 1971, and that Court can end the program at any time,

675 and for any reason.13 The motivation of the LSC, in this limited

676 context, is irrelevant. As the Supreme Court stated in Rust, “[t]his

677 is not a case of the Government 'suppressing a dangerous idea,' but of

678 a prohibition on a project grantee or its employees from engaging in

679 activities outside of the project's scope.” Rust, 111 S.Ct. at 1772-73.

680 The LSC's amendment of Rule XX does not, under these circumstances,

681 constitute impermissible viewpoint discrimination in violation of the

682 First Amendment.

683 Conclusion

684 For the foregoing reasons, the judgment of the district court

685 dismissing the action is

AFFIRMED.

13
At oral argument, the Plaintiffs asserted that even a complete
refusal to allow unlicensed students to practice law in Louisiana could
be considered a violation of the First Amendment if the change was
motivated by a desire to suppress political speech. We do not agree
that the First Amendment requires the LSC to continue, in perpetuity,
an optional program that allegedly benefits a particular political
viewpoint once that program has begun.

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