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REVISED - June 14, 2001
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IN THE UNITED STATES COURT OF APPEALS
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FOR THE FIFTH CIRCUIT
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No. 99-30895
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SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE,
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LOUISIANA CHAPTER; ST. JAMES CITIZENS
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FOR JOBS & THE ENVIRONMENT; CALCASIEU LEAGUE
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FOR ENVIRONMENTAL ACTION NOW; HOLY CROSS
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NEIGHBORHOOD ASSOCIATION; FISHERMEN &
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CONCERNED CITIZENS' ASSOCIATION OF
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PLAQUEMINES PARISH; ST. THOMAS RESIDENTS
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COUNCIL; LOUISIANA ENVIRONMENTAL ACTION
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NETWORK; LOUISIANA ASSOCIATION OF COMMUNITY
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ORGANIZATIONS FOR REFORM NOW; NORTH BATON
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ROUGE ENVIRONMENTAL ASSOCIATION; LOUISIANA
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COMMUNITIES UNITED; ROBERT KUEHN; CHRISTOPHER
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GOBERT; ELIZABETH E. TEEL; JANE JOHNSON;
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WILLIAM P. QUIGLEY; TULANE ENVIRONMENTAL
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LAW SOCIETY; TULANE UNIVERSITY GRADUATE
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AND PROFESSIONAL STUDENT ASSOCIATION;
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INGA HAAGENSON CAUSEY; CAROLYN DELIZIA;
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DANA HANAMAN,
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Plaintiffs-Appellants,
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versus
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SUPREME COURT OF THE STATE OF LOUISIANA,
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Defendant-Appellee.
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Appeal from the United States District Court for the
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for the Eastern District of Louisiana
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May 29, 2001
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Before GOODWIN,* GARWOOD and JONES, Circuit Judges.
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GARWOOD, Circuit Judge:
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On April 16, 1999, the Plaintiffs1 filed a complaint under 42
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U.S.C. § 1983 in the United States District Court for the Eastern
46
District of Louisiana, alleging that Louisiana Supreme Court Rule
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XX impermissibly suppresses Plaintiffs' freedoms of speech and
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association as protected under the First and Fourteenth Amendments.
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The complaint seeks injunctive and declaratory relief, costs and
attorneys' fees. Defendant, the Louisiana Supreme Court (LSC),2
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filed two motions, asking the district court to dismiss the action
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under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and,
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in the alternative, to dismiss for lack of standing. Oral argument
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was held on July 21, 1999, and on July 27, 1999, the district court
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granted the LSC's motions. This appeal by Plaintiffs followed. We
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affirm.
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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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In 1971, the LSC adopted the precursor to what is now Rule XX,
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which for the first time allowed the limited practice of law by
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students as part of supervised clinical education programs in
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Louisiana law schools. The rule allowed eligible law students in
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certain circumstances to appear in court or before administrative
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tribunals in a representative capacity on behalf of the state, its
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subdivisions, or any indigent person. In 1988, the LSC amended
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Rule XX to clarify that the rule also allowed students to represent
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indigent community organizations. See Louisiana Supreme Court Rule
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XX (1988). It is the LSC's most recent set of amendments to Rule
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XX that prompted the current suit. The rule as it exists now, and
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as it has always existed, operates only to set forth the limited
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circumstances under which unlicensed law students may engage in the
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practice of law in Louisiana; it has no other reach.
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Over the years, several Louisiana law school clinics,
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including the Tulane Environmental Law Clinic (TELC), have supplied
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legal advice and representation to numerous individuals and various
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community organizations. In 1996, TELC agreed to represent St.
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James Citizens for Jobs and the Environment (St. James Citizens),
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a group of approximately one hundred low-income and working-class
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residents of St. James Parish. St. James Citizens was formed in
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response to a proposal by Shintech, a chemical manufacturer, to
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build a chemical plant in Convent, a small town in St. James
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Parish. The group was dedicated to resisting the construction of
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the Shintech plant in their community and to raising public
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awareness of community environmental and health concerns related to
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the proposed plant. TELC represented St. James Citizens in a
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variety of ways: at hearings before the Louisiana Department of
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Environmental Quality, in state court, and by filing objections to
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the proposed plant with the EPA. Eventually the resistence of the
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local community to the new plant drove Shintech to reject Convent
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as its site, and the plant was located elsewhere in Louisiana.
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According to the Plaintiffs' complaint,3 TELC's representation
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of St. James Citizens induced significant criticism of the clinic
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from political and business leaders in Louisiana. The complaint
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alleges that various Louisiana business and political leaders,
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including Governor Foster, tried to convince Tulane University to
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curtail the endeavors of TELC. Tulane University proved
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unresponsive to this pressure, and so, according to the complaint,
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the "powerful political and business interests" opposed to the
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clinic turned their attention to the LSC. The complaint alleges
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that these political and business interests urged the LSC to
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prevent TELC and other clinics from continuing to aid community
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groups in giving voice to environmental and health concerns. The
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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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document the political pressure exerted on both Tulane and the LSC,
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including phone calls from Governor Foster to the President of
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Tulane University, statements of Governor Foster at a meeting of
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the New Orleans Business Council requesting assistance in
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curtailing the efforts of TELC, various public criticisms of TELC
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by Governor Foster, a letter from a chamber of commerce
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organization urging the LSC to eliminate the TELC because the
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faculty and students involved were "in direct conflict with
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business
positions,"
and
letters
from
various
business
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organizations, including the Business Council, the Louisiana
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Association of Business and Industry, and The Chamber/Southwest
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Louisiana, urging the LSC to eliminate TELC.
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Allegedly in response to the concerns of the Governor and
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business groups, in the fall of 1997 the LSC launched an official
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investigation into the activities of TELC and Louisiana's other law
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school clinics. The results of this investigation have not been
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made public, but the Plaintiffs allege in their complaint that two
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Justices of the LSC have disclosed that the investigation did not
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reveal any inappropriate or unethical behavior by any person
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associated with any Louisiana law school clinic.
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The LSC did in fact alter its rule concerning student
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practitioners, and on March 22, 1999, the Court announced the
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amendments that established the current form of Louisiana Supreme
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Court Rule XX. The amendments became effective April 15, 1999, and
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by their terms "shall not impact or apply to any cases, and/or the
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representation of any clients, in which the representation
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commenced prior to the effective date of the amendments." The
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amendments to Rule XX altered the existing rule in two ways that
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are relevant to the present case. First, the rule's indigence
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requirements were tightened. The new rule allows representation of
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individuals or families only if their annual income does not exceed
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200% of the federal poverty guidelines. The rule also now requires
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that any indigent community organization that wishes to obtain
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representation from a clinic must certify in writing its inability
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to pay for legal services, and at least fifty-one percent of the
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members of the organization must meet the income guidelines. The
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second major change to Rule XX involves the community outreach
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efforts of the law school clinics. Under the new rule, clinical
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student practitioners are prohibited from representing in the role
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of attorneys an otherwise qualified individual or organization if
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any person associated with the clinic initiated contact with that
individual or organization for purposes of that representation.4
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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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In response to the LSC's new Rule XX, the Plaintiffs filed this
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lawsuit on April 16, 1999.
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In an opinion dated July 27, 1999, the district court
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dismissed the case for lack of standing and for failure to state a
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claim. The district court held that the complaint failed to
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establish the deprivation of any cognizable federal right. The
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court found that the indigence requirements did not implicate any
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freedom of association or speech, and that the limitation of
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clinical services to the poor was rationally related to a
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legitimate government purpose. Southern Christian Leadership
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Conference v. Supreme Court, 61 F.Supp.2d 499, 511 (E.D. La. 1999).
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The court noted that the LSC has broad power to regulate student
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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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restrictions of Rule XX did not violate the First Amendment. The
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court reasoned: "While free speech rights do exist in this area,
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they are precariously perched when balanced against the imperatives
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of protecting the public and monitoring professional ethics.
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Particularly where student solicitation of potential clients is
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involved, concern for protecting the public grows considerably."
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Id. at 512. Applying rational basis review, the court held that
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the solicitation restrictions were justified because the
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restrictions were rationally related to the state's legitimate
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interest in protecting the public and monitoring professional
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ethics. Id. The court also dismissed the Plaintiffs' claims of
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viewpoint discrimination, holding that the political motivations
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of the LSC could not transform an otherwise permissible action into
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a constitutional violation. Id. at 513. Accordingly, the district
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court dismissed the Plaintiffs' claims in their entirety. This
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appeal followed.
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Discussion
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We review de novo a district court's dismissal for failure to
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state a claim under Rule 12(b)(6). Leffall v. Dallas Independent
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School Dist., 28 F.3d 521, 524 (5th Cir. 1994). In considering a
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motion to dismiss, the complaint should be construed in favor of
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the plaintiff, and all facts pleaded should be taken as true.
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Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir. 1999).
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Motions "to dismiss for failure to state a claim [are] 'viewed with
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disfavor, and [are] rarely granted.'" Tanglewood East Homeowners
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v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988)
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(quoting Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981)). A
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Rule 12(b)(6) dismissal will not be affirmed "unless it appears
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beyond doubt that the plaintiff can prove no set of facts in
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support of his claim which would entitle him to relief." Conley v.
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Gibson, 78 S.Ct. 99, 101 (1957). However, "conclusory allegations
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or legal conclusions masquerading as factual conclusions will not
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suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied
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Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). In the context of
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a 12(b)(6) motion in a section 1983 suit, the focus should be
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"whether the complaint properly sets forth a claim of a deprivation
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of rights, privileges, or immunities secured by the Constitution or
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laws of the United States caused by persons acting under color of
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state law." Fontana v. Barham, 707 F.2d 221, 225 (5th Cir. 1983).
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If there is no deprivation of any protected right the claim is
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properly dismissed. Id.
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The Plaintiffs make a variety of claims, but their challenges
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to Rule XX fall into two basic groups. First, they claim that the
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rule is invalid on its face as an impermissible restriction of the
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First Amendment freedoms of the individuals and organizations that
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are parties to this suit. This first type of claim encompasses
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challenges to both of the substantive changes the LSC has made in
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Rule XX: the new, more specific indigence requirements as well as
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the restriction on student representation in the role of an
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attorney of any group or individual whose repreentation has been
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solicited by any person associated with the clinic.
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The Plaintiffs' second general claim is that regardless of
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whether Rule XX, on its face, restricts speech in violation of the
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First Amendment, the rule was enacted in retaliation for the
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clinics' and their clients' political speech and advocacy in the
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Shintech matter, and is therefore an impermissible form of
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viewpoint discrimination. The Plaintiffs' claim that the LSC
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amended Rule XX in direct response to pressure from business
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interests who were opposed to the TELC's environmental outreach and
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advocacy. This second claim depends heavily on the motivation of
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the LSC in enacting Rule XX.
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In general, the LSC challenges the standing of all of the
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Plaintiffs in this suit, and alleges that none of the parties have
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suffered an injury in fact sufficient to justify this challenge to
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Rule XX. In response to the first set of claims, the LSC points out
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that the indigence requirements are not unlike those of several
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other states and the federal government, that the income level that
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disqualifies
individuals
from
clinic
representation
is
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significantly higher than the standard used by many states and the
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federal Legal Services Corporation, and that since none of the
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client organizations are entitled to pro bono representation in
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civil cases there has been no actionable deprivation of any
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protected right.
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The LSC responds to the Plaintiffs' attack on the solicitation
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restrictions by arguing that there is no right of non-lawyers to
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represent others in litigation, that the litigation activities the
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clinics engage in cannot be considered "speech" and that therefore
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no party's "speech" or other rights have been impacted. The LSC
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responds to the viewpoint discrimination claims in much the same
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way, arguing that Rule XX does not affect any party's rights of
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association or free speech. The LSC argues that although attorneys
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may have speech and associational freedoms that protect pro bono
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representation of clients for political reasons, lay persons and
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law students have no such rights. Since Rule XX does not affect
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the ability of any attorney to represent pro bono clients, the LSC
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argues, the rule does not implicate any protected speech or
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associational interests.
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Thus, this case involves four issues: (1) whether the
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Plaintiffs have standing; whether Plaintiffs have stated a claim
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that Rule XX, on its face, violates protected freedoms of speech
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and association by (2) the tightening of the indigence requirements
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or by the (3) imposition of solicitation restrictions on student
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representation in the role of an attorney; and (4) whether the
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LSC's promulgation of the rule constitutes actionable viewpoint
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discrimination in this context.
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Standing
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All of the Plaintiffs in this case fall into one of four
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categories. The first group is comprised of community
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organizations and individuals that have either been clients of the
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student clinics or who are concerned that they will not be able to
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obtain representation from the clinics in the future. The second
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consists of law professors and clinical law instructors who oversee
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or are otherwise involved in the student clinics. The third group
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consists of three Tulane University law students, two third year
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students who were "student practitioner" members of TELC during the
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1998-99 academic year and one second year student who had been
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accepted as a TELC member and "student practitioner" for the 1999-
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2000 academic year. The fourth and last group consists of two
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student organizations, the Tulane Environmental Law Society (an
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organization of students that includes some of the students
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enrolled in the Tulane Environmental Law Clinic) and the Tulane
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Graduate and Professional Student Association.5 Neither Tulane
271
University nor TELC is a party to the suit; nor is any other
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university or law clinic.
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To satisfy the standing requirement, a party must establish
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basic three elements. First, the plaintiff must have suffered an
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injury in fact. An "injury in fact" is an invasion of a legally
5Another individual party plaintiff below (Shearer) did not join
in this appeal; consequently, we disregard him.
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protected interest which is both (a) concrete and particularized,
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and (b) actual or imminent and not conjectural or hypothetical.
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Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992).
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Second, there must be a causal connection between the injury and
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the conduct complained ofin other words, the injury must be
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traceable to the defendant and not the result of the independent
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action of a third party. Id. Third, the injury must be
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redressible; it must be likely, as opposed to merely speculative,
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that a favorable decision will redress the plaintiff's injury. Id.
285
The party invoking federal jurisdiction bears the burden of
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establishing these elements, but "[a]t the pleading stage, general
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factual allegations of injury resulting from the defendant's
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conduct may suffice, for on a motion to dismiss we `presum[e] that
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general factual allegations embrace those specific facts that are
290
necessary to support the claim.'" Id. (quoting Lujan v. National
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Wildlife Federation, 101 S.Ct. 3177, 3189 (1990)).
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According to the complaint, Rule XX directly regulates the
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operations of law school clinics in Louisiana and significantly
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alters the ways in which those clinics can permissibly function.
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Further, the complaint alleges that under the new rule, several of
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the client organizations will hereafter be unable to obtain
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representation from the clinics. Given the expansive and
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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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of the Plaintiffs so as to constitute an injury in fact. At least
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some of the Plaintiffs have standing to bring each type of claim
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currently before the court. Accordingly, we next address the
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merits of the Plaintiffs' claims. We begin with the Plaintiffs'
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claim that the indigence and solicitation restrictions, on their
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face, improperly infringe on the Plaintiffs' rights under the First
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Amendment.
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Indigence Requirements
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Rule XX now requires that clinical student practitioners
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represent only those individuals who are "indigent," which is
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defined as having an annual income that is less than 200% of the
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current federal poverty guidelines as established by the Department
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of Health and Human Services. Louisiana Supreme Court Rule XX,
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section 4. As the commentary to Rule XX points out, applying the
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current federal poverty standards the clinics are permitted to
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represent an individual if his annual income is less than $16,480,
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and may represent a family of four if the family's annual income is
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less than $33,340. Id. Contrary to the Plaintiffs' assertions,
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the rule does not require individuals to provide detailed financial
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information to obtain representationthe rule simply states that
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the clinics may only represent individuals who fall within the
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income guidelines. The Plaintiffs claim that this aspect of the
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rule subjects their clients to invasive discovery intended to
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obtain embarrassing financial information. However, the LSC has
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always required that student practitioners represent only
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"indigent" community organizations. See Louisiana Supreme Court
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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.
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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,
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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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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
paralegals, as legal (or factual) researchers, or as trial assistants,6
397
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 allowedand did not at all until relatively recentlynon-
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 programsnamely doing what only an
420
attorney can otherwise doto 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.
-19-

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
-20-

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
-21-

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
-22-

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,
-23-

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
-24-

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.
-25-

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 speakerthere is no government message that the clinics
-26-

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'
-27-

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 applicationit 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
-28-

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 LSCthe highest judicial body in Louisiana exercising its
666
undisputed power and responsibilityhas 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.
-29-

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.
-30-