Legal Services Corp Case

The LSC is a government agency that "distributes funds appropriated by Congress to eligible local grantee organizations" to fund legal services for the poor. The law provides that the funds may not be used "if the representation involves an effort to amend or otherwise challenge existing welfare law."

Is this case more like Rust (funding private grantees to deliver government speech or government services) or more like Rosenberger (funding that facilitates private speech, in this case the private legal arguments of clients challenging governmental restrictions on welfare programs)? See page1619.

In a lawsuit challenging governmental restrictions in a welfare program, which lawyer delivers the government's legal viewpoint--the government's lawyer or the LSC-funded lawyer representing the welfare applicant? See id.

See p. 1619-1620:

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

2. "Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of attorneys."

Now apply this to the Promise Scholarship Program in Locke v. Davey. Is this a pool of funds designed to facilitate private educational speech or is it government speech? Is the restriction against funding "devotional theology" majors a viewpoint restriction on private educational speech? Does it "distort" an "existing private medium of expression?"

Is Davey more like Rust or more like Rosenberger, Finley and Velazquez? If Rehnquist was really serious in avoiding a free speech issue in Davey, his job was to analyze this cases and persuasively argue that Davey was more like Rust than like the others. Did he do so?