# Petition for Writ of Certiorari — Southern Christian Leadership Conference v. Supreme Court of Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2381%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 534 U.S. 995 ## Text (4) No.01-- O1%1 360 aug 27 2009 IN THE OFFICE OF THE CLERK Supreme Court of the United States SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, LOUISIANA CHAPTER; ST. JAMES CITIZENS FOR JOBS & THE ENVIRONMENT; CALCASIEU LEAGUE FOR ENVIRONMENTAL ACTION NOW; HOLY CROSS NEIGHBORHOOD ASSOCIATION; FISHERMEN & CONCERNED CITIZENS’ ASSOCIATION OF PLAQUEMINES PARISH; ST. THOMAS RESIDENTS COUNCIL; LOUISIANA ENVIRONMENTAL ACTION NETWORK; LOUISIANA ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW; NORTH BATON ROUGE ENVIRONMENTAL ASSOCIATION; LOUISIANA COMMUNITIES UNITED; ROBERT KUEHN; CHRISTOPHER GOBERT; ELIZABETH E. TEEL; JANE JOHNSON; WILLIAM P. QUIGLEY; TULANE ENVIRONMENTAL LAW SOCIETY; TULANE UNIVERSITY GRADUATE AND PROFESSIONAL STUDENT ASSOCIATION; INGA HAAGENSON CAUSEY; CAROLYN DELIZIA and DANA HANAMAN, . Petitioners, v. SUPREME COURT OF THE STATE OF LOUISIANA, Respondent. On PETITION FOR A Writ OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI David S. UDELL Counsel of Record BRENNAN CENTER FOR JUSTICE AT NYU Scuoo i oF LAw PauL K. SONN 161 Avenue of the Americas Burt NEUBORNE Twelfth Floor E. JOSHUA ROSENKRANZ New York, NY 10013 Puitiep G. GALLAGHER (212) 998-6730 Attorneys for Petitioners (Additional Attorneys Listed on Inside Cover) 168988 g COUNSEL PRESS (800) 274-3321 + (800) 359-6859 JupitH L. MoGuL 18 Wyndham Road Scarsdale, NY 10583 Mary E. Howe. HowE._ & SNEAD 316 South Dorgenois Street New Orleans, LA 70119 MARJORIE R. ESMAN 701 South Peters Street Suite 100 New Orleans, LA 70130 ii amici anata. i QUESTIONS PRESENTED 1. Does the First Amendment forbid a state court from promulgating purportedly neutral rules governing student law practice that are openly designed to suppress the presentation of disfavored viewpoints to the judiciary? 2. May areviewing court consider a state body’s motive _ when determining whether promulgation of purportedly neutral rules openly designed to suppress the presentation of disfavored viewpoints violates the First Amendment? 3. Does the First Amendment forbid a state from barring qualified law students enrolled in faculty-supervised clinics operated by private law schools from appearing in litigation brought by the clinic if any clinic student or supervising faculty member played a role in notifying prospective clients of their legal rights and offering them assistance? 4. Does the First Amendment forbid a state from conditioning authorization to engage in faculty-supervised student law practice on a coerced waiver of the speech rights of student practitioners, faculty supervisors, and potential clients? 5. Does the First Amendment forbid a state from dictating the nature of the clients to whom faculty-supervised law clinics operated by private law schools may offer their services on a pro bono basis? ul TABLE OF CONTENTS k Page Questions Presented ........----+-+eeeeereees i Table of Contents ..........-0e cece eee ee ees il Table of Cited Authorities .........---++eee ees iv Table of Appendices .........--- sees eeeerees Vill Opinions Below .......--.---eeeeeeeereeteees l Statement of Jurisdiction ..........--++eeeeee l Constitutional Provisions, Statutes and Rules rere rrr l Statement of the Case ......... 2. eee eee ee eee 2 A. Statement of Facts ..........--0:eeeeeees 2 B. The Proceedings Below .......---+++++: 6 Reasons for Granting the Petition .......--.++-: 9 I. The Core of the First Amendment is an Absolute Ban on Governmental Viewpoint Discrimination. As the Restrictive Rules at Issue Here Were Motivated By a Desire to Silence a Particular Viewpoint, the Court Should Clarify the Circumstances Under Which Courts Must Consider Viewpoint Suppressive Motive in Determining Whether a Purportedly Neutral Rule Violates the First Ammen. . oc5 a isc cknens eee neeersas 9 iil | Contents Page A. This Court Has Not Articulated A Standard for When Motive Inquiry is Appropriate in Assessing the Constitutionality of a Purportedly Neutral Rule Limiting First Amendment DE htsubinedssccurdewaeskasne 10 B. The Fifth Circuit Erred in Finding that the Louisiana Supreme Court’s Motive to Suppress Disfavored Speech was Irrelevant to Plaintiffs’ Viewpoint Discrimination Claim. .............. 15 II. The Court Should Clarify How the First Amendment Unconstitutional Conditions Doctrine Applies to Efforts to Restrict Student Practice in Faculty-Supervised Clinics Operated and Maintained by Private Law Schools. Participants in Law School Clinics May Not Be Compelled to Sacrifice Fundamental Free Speech Rights in Order to Represent Clients Under Appropriate Faculty ee cc eLeeyecdeakeasns 19 Ill. The Court Should Clarify Whether Rules That Significantly Burden Efforts by Participants in Law School Clinics to Inform Persons of Their Legal Rights Are Subject to Exacting First Amendment Scrutiny. ... 24 EEE GS I a a a 29 iv TABLE OF CITED AUTHORITIES Page Cases: Application of Thom for Approval of Incorporation of Lambda Legal Defense & Educ. Fund, Inc., 301 N.E.2d $42 (N.Y. 1973) ......2ccccccscceees 23 Bates v. State Bar of Ariz., 433 U.S. 350(1977) .. 25 Board of Educ. v. Pico, 457 U.S. 853 (1982) ....... 11,12 Buckley v. Valeo, 424 U.S. 1 (1976) ......------ 26 Church of Lukumi Babalu Aye, Inc. v. City of . Hialeah, 508 U.S. 520 (1993) .......----+5-: 13 City of Cleburne v. Cleburne Living Ctr., Inc., 473 CS MCI conc cba cesusicnenseeusneess 26 City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) .. 14 Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985) ........----- 11, 16, 17, 18 Edwards v. Aguillard, 482 U.S. 578 (1987) ...13, 17, 18 Epperson v. Arkansas, 393 U.S. 97 (1968) ......- 13 Families Achieving Indep. & Respect v. Nebraska Dep't of Social Servs., 111 F.3d 1408 (8th Cir. MOTE vcncckaws conden rans nceasennseenan 15 Vv Cited Authorities Finley v. National Endowment for the Arts, 524 U.S. | eer eer re yr ie 19 Grosjean v. American Press Co., Inc., 297 U.S. 233 GRNOE a0 did oneekatiessedesse eee 12 Grossbaum v. Indianapolis-Marion County Bldg. Authority, 100 F.3d 1287 (7th Cir. 1996), cert. Getad, HOUR. AEROS ni accskcssdenes 14 In re New Hampshire Disabilities Rights Ctr., Inc., S58 ADE Bee ae NOEE 2s ceanencnenecnees 23 In re Primus, 436 U.S. 412 (1978) ..... 5, 24, 25, 26, 27 in ve Solar, GOL U.S. ZS CISTI} iv avcccaasacaess 22 Legal Servs. Corp. v. Velazquez, 121 S. Ct. 1043 SED a bskewes bab phase nies 19, 20, 21 Magsino v. Gridiron Constr. Co., No. 99-6002 (Parish of Orleans Civil Dist. Ct., Div. “B”) ... 6 McCray v. United States, 195 U.S. 27 (1904) ..... 14 Middlesex County Ethics Comm. v. Garden State Bar dae, 43 US. 423 CAGES) | 6 hv svalsatevecess 21 _ Minneapolis Star & Tribune Co. v. Minnesota Comm 'r of Revenue, 460 U.S. 575 (1983) ..... 12 vi Cited Authorities Page NAACP v. Button, 371 U.S. 415 (1963) ..... 5, 24, 25, 26 NAACP vy. State of Alabama, ex rel. Patterson, 357 UB. GAD CUSSED 0c cnccctencssecbccveseecesss 25 Palmer v. Thompson, 403 U.S. 217 (1971) ....... 14 | Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37 CRSGS) ccccccscccccdecacsses 12, 13, 16 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ... 9 Rosenberger v. Rector and Visitors of the Univ. of Va., S1S UZ. SID CIGSS) .ccccccccssccess 16, 19, 20 Rust v. Sullivan, 500 U.S. 173 (1991) ........... 19, 20 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 CROIDD oc cccccccccebecsuccddocsascbeseuave 13 Shelton v. Tucker, 364 U.S. 479 (1960) .......... 22 South Carolina Educ. Ass'n v. Campbell, 883 F.2d 1251 (4th Cir. 1989), cert. denied, 493 U.S. 1077 CEGOED on cv ccccccvccsaceceiuvenatecueuneses 14, 15 State of Arizona v. State of California, 283 U.S. 423 CIGBED 6 0c oncccccncdanctuhaeed aa uvesesees 14 Tovar v. Billmeyer, 721 F.2d 1260 (9th Cir. 1983) vii Cited Authorities Page United States v. O'Brien, 391 U.S. 367 (1968) ....13, 14 Village of Schaumberg v. Citizens for a Better Env 't, 444 U.S. 620 (1980) ................. 1] Wallace v. Jaffree, 472 U.S. 38 (1985) .......... 17 United States Constitution: Pas I 6 wan a CuRH ES 046 EKh 005 005S8 passim Statute: Se es 1 ROUEED os dca snewaKeteus cueneees l Rules: aA. . OF Paar. Cosme. S50) .cccccscccsccccces 27 St GU CAEN hn vc ccheccasecuéncaeuadys 27 Mp EE bb pk cNababutesetdsccenaes passim Other Authorities: William Glaberson, Hazy Legal Terrain: Museum Fight Pits Free Expression Against Control of Public Spending, N.Y. Times, Sept. 30, 1999 ... 19 Economic Freedom Law Clinic at the George Mason University School of Law, available at http:// www.wilf.org/Litigating/econfreedom.asp ..... 24 vill TABLE OF APPENDICES : Page Appendix A — Opinion Of The United States Court Of Appeals For The Fifth Circuit Dated May 29, eer ere yere TeTTTT etree la Appendix B — Order And Reasons Of The United States District Court For The Eastern District Of . Louisiana Dated July 27, 1999 ............... 30a Appendix C — Rule Involved ................. 63a Appendix D — Complaint Dated April 16,1999 .. 72a | Plaintiff-petitioners Southern Christian Leadership Conference, et al. respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. OPINIONS BELOW The opinion of the district court, dated July 27, 1999, granting defendant the Louisiana Supreme Court’s motion to dismiss the complaint for failure to state a claim is reported at Southern Christian Leadership Conference v. Supreme Court of the State of Louisiana, 61 F. Supp. 2d 499 (E.D. La. 1999). The opinion of the United States Court of Appeals for the Fifth Circuit, filed May 29, 2001, affirming the decision of the District Court granting defendant’s motion to dismiss is reported at Southern Christian Leadership Conference v. Supreme Court of the State of Louisiana, 252 F.3d 781 (Sth Cir. 2001). These opinions are reproduced in the Appendix to this Petition for Writ of Certiorari as Appendices A and B. STATEMENT OF JURISDICTION The Fifth Circuit entered its judgment on May 29, 2001. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED The following constitutional provisions, statutes and regulations are involved in this case: 1. United States Constitution, Amendment I; and 2. Rule XX of the Rules of Supreme Court of Louisiana (Apr. 15, 1999) (App. C at 63a-7 1a). 2 STATEMENT OF THE CASE A. Statement of Facts In 1999, after nearly thirty years of permitting Louisiana law students to represent disadvantaged parties under faculty supervision through law school clinical programs, the Louisiana Supreme Court amended its student practice rules in an open effort to silence vigorous advocacy on behalf of clients whose health and environmental safety are threatened by efforts to locate noxious industrial plants in poor neighborhoods. In 1971, the Louisiana Supreme Court adopted Rule XX, which authorized law students to represent clients on a pro bono basis under faculty supervision in the context of law school clinics. See La. Sup. Ct. R. XX (1971). The Rule had as its stated purposes to “provid[e] assistance to clients unable to pay for such services and to encourage law schools to provide clinical instruction in trial work of varying kinds.” Id. § 1. In 1988, the Louisiana Supreme Court amended Rule XX to authorize law students to represent community organizations, as well as individuals. See La. Sup. Cr. R. XX (1988). In 1996 and 1997, the Tulane Environmental Law Clinic (TELC) successfully represented a community group and local residents in St. James Parish, Louisiana in opposing a proposal by the Shintech Corporation to construct a chemical plant in their community. The planned facility would have released an additional 1.5 million tons of pollution (some of it carcinogenic) each year into the surrounding air. Compl. qq 23-27 (App. D at 91a-94a). TELC’s successful representation of these clients in the Shintech matter provoked a barrage of criticism from no ae 3 powerful political and business figures in Louisiana. These forces launched a concerted campaign to prevent TELC and other law school clinics from continuing to represent disadvantaged communities in Louisiana seeking to raise environmental and health concerns. Compl. ¥ 28 (App. D at 94a). Louisiana Governor Murphy J. “Mike” Foster called the President of Tulane University to complain about TELC, Compl. 4] 28 (App. D at 94a); urged business leaders to withhold their support for Tulane University until it reined in TELC, Compl. {29 (App. D at 94a); and suggested that the Louisiana legislature should consider stripping Tulane of its tax-exempt status in retaliation for TELC’s activities. Other high state officials joined the attack on TELC, including the Secretary of the Louisiana Department of Economic Development, who vilified TELC and its community group clients as “environmental fascists” who used “brown-shirt tactics.” Compl. {J 35-36 (App. D at 96a-97a). When these attempts at direct pressure on Tulane failed, the political and business interests turned to the elected Louisiana Supreme Court, launching a heavy-handed political campaign to urge the court to limit student law practice, and specifically demanding that law school clinics be restricted from representing community groups and from engaging in legal outreach of the sort that public interest organizations routinely conduct. Compl. ff 29-49 (App. D at 94a-104a). Not shy about declaring that their displeasure with TELC and its clients arose from the viewpoints they were voicing, major industry trade associations filed a complaint with the Louisiana Supreme Court charging that TELC’s actions hurt Louisiana business and urging the court to investigate the positions advocated by TELC and to restrict its activities. Compl. FJ 31, 33 (App. D at 95a-96a). The business community exerted pressure on the Louisiana Supreme Court not only from the outside, but from within the 4 courthouse as well. Supreme Court of Louisiana Deputy Judicial Administrator Kim Sport served as the court’s public liaison and was one of its initial investigators of the complaint concerning TELC and its clients. Simultaneously, however, she served as an officer with the New Orleans Chamber of Commerce, one of the major trade associations lobbying the Louisiana Supreme Court to limit the activities of TELC and the other law school clinics. Compl. 4 34 (App. D at 96a). Responding to this mounting political pressure, the Louisiana Supreme Court launched an official investigation into the activities of TELC and Louisiana’s other law school clinics. Compl. Jf 41, 43 (App. D at 99a-100a). The court has never made public the results of that investigation. However, two of its members, including the Chief Justice, have disclosed that the investigation reveaied no evidence that the student practice rules had been violated; that student practitioners at any Louisiana law school clinic had engaged in unethical or inappropriate conduct; or that any clinic had represented clients capable of affording private legal counsel. Compl. ff 45, 46 (App. D at 101a-102a). Despite the results of its own internal investigation, the Louisiana Supreme Court succumbed to the campaign to silence the law school clinics, sharply curtailing their activities in a transparent effort to prevent additional environmental litigation. The March 30, 1999 amendments (denominated as the Rule XX amendments),' imposed significant new restrictions on the ability of community groups in Louisiana to obtain assistance from law clinic students — historically one of the few sources of legal aid 1. The text of the amended Rule XX is set forth as Appendix C at pages 63a-7 1a. ee tte 5 for community organizations in Louisiana unable to afford private counsel. Compl. 4 56 (App. D at 107a). First, the Rule XX amendments added an “anti- solicitation” provision designed to cut law school clinics off from the poor communities they had served. Notwithstanding this Court’s teaching that the First Amendment guarantees freedom to pursue public education about legal rights accompanied by offers of pro bono legal assistance, see In re Primus, 436 U.S. 412 (1978), and NAACP v. Button, 371 U.S. 415 (1963), the amended rule bars clinical law students from representing clients on any matter that was the subject of community legal education by anyone associated with the clinic — whether licensed clinic lawyers, other clinic staff, or students. See La. Sup. Cr. R. XX § 10 (1999) (App. C at 70a). The “anti-solicitation” provision effectively precludes anyone associated with a Louisiana law school clinic from offering community legal education and accompanying pro bono assistance, since the essence of a clinical educational experience is the ability to engage in faculty-supervised practice. Under the anti-solicitation rule, a law clinic may engage in education of the community, or litigation on behalf of the community, but not both. Second, in an ostensible effort to target law clinic resources toward the poor, the Rule XX amendments added a group client eligibility restriction that prohibits law clinic students from representing a community organization unless at least 51% of the group’s members are below a specified income level. See La. Sup. Cr. R. XX §§ 4 & 5 (1999) (App. C at 65a). The use of community organizations as plaintiffs in environmental litigation is particularly important because individual plaintiffs are often vulnerable to economic 6 retaliation. However, as a practical matter, the new group- eligibility rule requires members of a community group seeking representation by a law clinic to disclose their identities and personal finances in order for the clinic to be confident that the representation is legally permitted. In doing so, the rule effectively destroys the ability of community organizational plaintiffs to shield individuals from potential reprisals. In view of this impact and the significant administrative burdens associated with documenting group eligibility, Louisiana law school clinics have decided they have no option but to stop having students provide representation to community organizations.’ Thus, although the income eligibility rules ostensibly direct clinic resources toward the poor, they are in fact designed to function as a hurdle cutting poor communities off from legal representation. B. The Proceedings Below Plaintiffs, consisting of clients who sought representation by Louisiana law school clinics, law school clinical 2. Many low-income community group members, like people of any income level, are reluctant to disclose their identities and information about their finances, particularly where it might get into the hands of powerful litigation adversaries who could use it to harass or embarrass them. Compl. 44 57-58 (App. D at 107a-108a). Additionally, complying with the certification requirements imposes severe burdens on community groups, which typically lack the administrative resources to gather and regularly update information on their members’ incomes sufficient to document their eligibility for representation. Compl. J] 64-65 (App. D at 110a-11 1a). Moreover, in at least one incident, a court has permitted opposing counsel in a law clinic case to pursue intrusive discovery of an individual’s finances in an effort to challenge that client’s eligibility for law student representation. Magsino v. Gridiron Constr. Co., No. 99-6002 (Parish of Orleans Civil Dist. Ct., Div. “B”). 7 professors, and law students enrolled in law school clinics, filed this lawsuit challenging the constitutionality of the amendments to Rule XX. They alleged that the amendments were an exercise in impermissible viewpoint discrimination because they had the purpose and effect of suppressing the presentation of politically unpopular viewpoints to | Louisiana’s courts. In addition, plaintiffs argued that the Rule XX amendments violated the First Amendment’s unconstitutional conditions doctrine because they conditioned the plaintiffs’ participation in the law student practice program on surrendering important First Amendment rights. On July 27, 1999, the U.S. District Court for the Eastern District of Louisiana granted the Louisiana Supreme Court’s motion to dismiss the complaint for failure to state a claim. App. B at 30a. The court did not address plaintiffs’ unconstitutional conditions claim, and found irrelevant plaintiffs’ allegations that the amendments to Rule XX were improperly motivated by a desire to suppress the disfavored viewpoints espoused by the law students and their clients. Indeed, the district court suggested that it was not only permissible but inevitable for the elected Louisiana Supreme Court to respond to political pressure, commenting that “[i]n Louisiana, where state judges are elected, one cannot claim complete surprise when political pressure somehow manifests itself within the judiciary.” App. B at 61a. The Fifth Circuit affirmed the dismissal. App. A at la. Beginning with plaintiffs’ unconstitutional conditions challenge to the group eligibility requirement, the court found that it triggered mere rational basis review — a test that the court said the rule readily met. re 8 Addressing next plaintiffs’ unconstitutional conditions claim involving the rule’s restriction of pro bono solicitation, the court found that, because the solicitation restriction merely “indirectly discourages speech,” App. A at 16a, rather than “prohibit[ing] [it] directly,” App. A at 21a, and because student practitioners are not licensed members of the bar, the solicitation restriction posed no legally cognizable burden on plaintiffs’ First Amendment rights. App. A at 17a-19a. Turning finally to plaintiffs’ viewpoint discrimination claim, the court of appeals acknowledged that “[t]he Plaintiffs have alleged facts that may arguably support their claim that the LSC reacted to pressure from the Governor and business interests who bore [TELC] significant animus.” App. A at 26a. But it found that even if the motive behind the amendments was to “defuse political pressure on the [Louisiana Supreme Court], and to diminish the likelihood of the recurrence of similar activities in the future,” such motivation would not “transform Rule XX into an unconstitutional state action.” App. A at 27a. eed i i el The court concluded that the restrictions imposed by the amendments to Rule XX amounted to a refusal to support certain types of speech rather than an effort to stamp it out or suppress it, and that “the new version of Rule XX will not silence any group or individual’s speech except to the extent that it ceases to support private speech.” App. A at 28a. Although the court acknowledged that the jurisprudence regarding the impact of viewpoint suppressive motivation “is less than clear,” App. A at 22a, it ultimately held that any such motive of the Louisiana Supreme Court was irrelevant, and that the plaintiffs had failed to state a claim that the amendments to Rule XX constituted viewpoint discrimination. App. A at 28a-29a. 9 REASONS FOR GRANTING THE PETITION I. The Core of the First Amendment is an Absolute Ban on Governmental Viewpoint Discrimination. As the Restrictive Rules at Issue Here Were Motivated By a Desire to Silence a Particular Viewpoint, the Court Should Clarify the Circumstances Under Which Courts Must Consider Viewpoint Suppressive Motive in Determining Whether a Purportedly Neutral Rule Violates the First Amendment. The core of First Amendment protection is a ban on viewpoint discriminatory censorship by the government. When evidence of viewpoint discrimination appears on the face of a government enactment, this Court has been merciless in its condemnation. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1992). Where, however, government viewpoint discrimination is codified in a purportedly neutral restriction, this Court has given conflicting signals about the duty of the lower courts to consider such motive when enforcing the First Amendment. Not surprisingly, the Fifth Circuit candidly acknowledged confusion about the relevance of the Louisiana Supreme Court’s alleged viewpoint-suppressive motive in amending the law student practice rules. In something of an understatement, the court observed that “the jurisprudence in this area is less than clear.” App. A at 22a. This Court has embraced motive inquiry in some First Amendment cases involving facially neutral laws or pronouncements, and eschewed it in others, without articulating a clear rule as to when it is appropriate for a court to look behind the purportedly neutral words of a rule or law regulating speech in order to take cognizance of the censor’s viewpoint discriminatory motive. This inconsistency 10 has left the lower courts without guidance, resulting in differing approaches to the treatment of motive, subjecting litigants to the risk of inconsistent outcomes, and inviting cynical regulations that masquerade as neutral measures, but which are nothing more than sophisticated exercises in viewpoint discrimination. This case provides an ideal vehicle through which the Court can announce a consistent approach to First Amendment motive inquiry, providing much needed guidance to lower courts, litigants, and rule-making bodies alike. A. This Court Has Not Articulated A Standard for When Motive Inquiry is Appropriate in Assessing the Constitutionality of a Purportedly Neutral Rule Limiting First Amendment Activity. Concern about improper government motive drives most First Amendment jurisprudence. From the void-for- vagueness doctrine to the least-restrictive-means test to the refusal to allow viewpoint-based judgments to the ban on standardless permits to strict enforcement of First Amendment equality rules, First Amendment doctrine is designed to minimize the opportunity for government officials to suppress disfavored speech. Because policing improper governmental motive is so central to ensuring First Amendment freedoms, it is critical that the Court provide clear guidance as to the role of motive — and, in particular, motive to suppress disfavored viewpoints — in First Amendment review of purportedly neutral rules. Regrettably, the Court’s precedents in this critical area are confusing. On one side of the spectrum lie a series of cases in which the Court has allowed parties to pierce the purportedly neutral language of a government regulation for proof of discriminatory motive, as well as cases where the 11 Court itself has actually invalidated a facially neutral legislative enactment because of impermissible motive. For example, in Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985), the Court assessed an Executive Order and implementing agency regulation governing access to a federal workplace charity drive. A virtually unlimited array of charitable causes were permitted to participate, but not groups that sought to influence “the determination of public policy through political activity or advocacy, lobbying, or litigation on behalf of parties other than themselves.” Jd. at 795. The restriction was viewpoint neutral on its face, and the Court found the government’s justification reasonable. But that did not end the inquiry. Rather, the Court concluded that no justification will “save a regulation that is in reality a facade for viewpoint based discrimination.” /d. at 811. Put another way, a potentially valid justification “cannot save an exclusion that is in fact based on the desire to suppress a particular point of view.” /d. at 812 (citing Village of Schaumberg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980)). In light of evidence in the record that “cast doubt upon [the] genuineness” of the asserted grounds for excluding certain types of organizations, the Court authorized those groups to pursue, on remand, their contention that in excluding them, the rule’s authors were “impermissibly motivated by a desire to suppress” their point of view. /d. at 812-13. Motive was also a central factor in Board of Education v. Pico, 457 U.S. 853 (1982). There the Court considered a challenge to a school board’s decision to remove certain books from a school library. Focusing entirely on the motivation for that decision, this Court held that if the school board members “intended by their removal decision to deny 2 12 [students] access to ideas with which [the board] disagreed, and if this intent was the decisive factor in [the board’s] decision, the [board members] have exercised their discretion in violation of the Constitution.” Jd. at 871 (emphasis in original). Explaining that the removal decision would be perfectly constitutional if based on the vulgarity of the books or their educational suitability, id., the Court sent the case back to the trial court to consider the board’s motivation. The Court has actually gone on to invalidate legislative acts under the First Amendment where they were driven by improper viewpoint-based motivation. For example, the Court held that a Louisiana tax on the gross advertising receipts of larger newspapers was “bad because, in light of its history and the present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information.” See Grosjean v. American Press Co., Inc., 297 U.S. 233, 250 (1936). As the Court later explained, the “history” and “present setting” to which the Court referred was the politically charged climate of tension between then Senator Huey Long and the Louisiana press. Long and the Governor of Louisiana had distributed a circular referring to “lying newspapers,” and the tax in question as a “tax on lying.” See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 579-80 (1983) (discussing Grosjean). In a bow to the propriety of inquiring into a legislature’s motive, the Court in Minnesota Star observed that “the motivation of the legislature may have been significant” in the decision to strike the Louisiana tax in Grosjean. Id. Conversely, the Court has also found decisive the absence of evidence that a challenged action was improperly motivated. For example, in Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983), 13 the Court held that restrictions imposed on a union’s access to a school’s internal mail system did not amount to viewpoint discrimination. The holding hinged in part on the absence of evidence “that the school board intended to discourage one viewpoint and advance another.” /d. at 49. Moreover, the Court has routinely inquired into improper motivation in First Amendment contexts other than free speech. For example, it relied on the “legislature’s preeminent religious purpose” in holding that a state law requiring that creationism be taught whenever evolution was covered violated the Establishment Clause. See Edwards v. Aguillard, 482 U.S. 578, 590 (1987). See also Epperson v. Arkansas, 393 U.S. 97 (1968). More recently, the Court held that it was appropriate and, indeed, necessary to inquire into the circumstances surrounding enactment of a school policy permitting student-led invocations before football games to determine if it violated the Establishment Clause. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000). See also Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540-41 (1993) (Kennedy, J., concurring) (in First Amendment Free Exercise challenge to municipal ordinance, “[rjelevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history . . .””). Although the Court’s First Amendment decisions are replete with instances where improper motive was not only considered by the Court but determinative of the outcome, there are, on the other side of the spectrum, cases in which the Court has declined to inquire into motive, sometimes expressing a broad disinclination to do so. Perhaps the strongest statement of that position is found in United States 14 v. O'Brien, 391 U.S. 367 (1968), in which the Court referred to the “familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Jd. at 383 (citing McCray v. United States, 195 U.S. 27, 56 (1904), and State of Arizona v. State of California, 283 U.S. 423, 455 (1931)). That view has been echoed more recently in City of Erie v. Pap’s A.M., 529 U.S. 277, 292 (2000). The Court has explained that “[i]nquiries into congressional motives or purposes are a hazardous matter.” O’Brien, 391 U.S. at 383. Among the reasons offered for refraining from such inquiry are the difficulty in ascertaining the dominant motive of a large group of legislators and the futility of invalidating a law because of bad motive, when it could simply be reenacted for proper reasons. See Palmer v. Thompson, 403 U.S. 217, 225 (1971). The Court has thus reached different conclusions about the role of motive in its analysis of First Amendment claims depending on the particular circumstances presented. Although some patterns emerge from these cases — for example the Court is more inclined to consider motive when there is evidence of pretext or a sham rationale, and reluctant in some instances where the body whose motive is questioned is a large legislative one — the lack of guidance from the Court on this question has generated confusion in the lower courts, and has resulted in inconsistent treatment of motive in free speech cases.’ Guidance from this Court is thus needed 3. See, e.g., Grossbaum v. Indianapolis-Marion County Bldg. Authority, 100 F.3d 1287, 1290 (7th Cir. 1996) (concluding that “motive of a government body is irrelevant when it enacts a content- neutral rule that regulates speech in a nonpublic forum”), cert. denied, 520 U.S. 1230 (1997); South Carolina Educ. Ass'n v. (Cont'd) 15 in order to provide fair notice to all involved and ensure uniform standards. B. The Fifth Circuit Erred in Finding that the Louisiana Supreme Court’s Motive to Suppress Disfavored Speech was Irrelevant to Plaintiffs’ Viewpoint Discrimination Claim. Led astray by the lack of reliable guidance in this area, the Fifth Circuit dismissed as legally irrelevant the evidence strongly suggesting that the Louisiana student practice rule changes were driven by a desire to discourage disfavored speech. While the lower court’s candid confusion was understandable to a degree, the weight of this Court’s recent authority suggests that the unusually stark evidence of viewpoint suppressive motive in this case should not have been ignored. : The complaint, which must be taken as true in this context, contains detailed allegations that the Louisiana Supreme Court issued the amendments to Rule XX in order to silence student law clinic programs, as a direct result of political pressure from the Governor and powerful business (Cont’d) Campbell, 883 F.2d 1251, 1259 (4th Cir. 1989) (allowing motive inquiry only in case of laws that “on their face directly inhibit or have the inevitable effect of inhibiting freedom of speech or related constitutional rights”) (emphasis in original), cert. denied, 493 U.S. 1077 (1990); Tovar v. Billmeyer, 721 F.2d 1260, 1264-65 (9th Cir. 1983) (assuming without discussion that inquiry into motive of city legislators would be proper in case challenging zoning ordinance); Families Achieving Indep. & Respect v. Nebraska Dep’t of Social Servs., 111 F.3d 1408, 1422-23 (8th Cir. 1997) (en banc) (examining motive behind government policy but ultimately concluding that rule’s adoption was not intended to suppress disfavored viewpoints). 16 organizations infuriated by the “anti-business” viewpoint expressed by the clinics and some of their clients. The district court recognized the “close temporal proximity between the business community’s expressions of outrage and the subsequent changes” to Rule XX. App. B at 60a. In view of - these facts, the court of appeals acknowledged that “[tJhe Plaintiffs have alleged facts that may arguably support their claim that the LSC reacted to pressure from the Governor and business interests who bore [the Tulane Environmental Law Clinic] significant animus.” App. A at 26a. But neither court found the allegations of suppressive motivation legally relevant to the claims of viewpoint discrimination. Indeed, the district court went so far as to suggest that political pressure of the sort alleged in the complaint is to be expected, commenting that “in Louisiana, where state judges are elected, one cannot claim complete surprise when political pressure somehow manifests itself within the judiciary.” App. B at 61a. Contrary to the district court’s jaded appraisal, it is precisely when such political pressure results in suppression of a disfavored viewpoint that the protections afforded by the First Amendment come into play. This Court has been unwavering in its opposition to viewpoint-based discrimination, characterizing it as an “egregious form” of First Amendment violation. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). See also Perry, 460 U.S. at 46; Cornelius, 473 U.S. at 811. By refusing to consider the Louisiana Supreme Court’s suppressive motive in amending the student practice rules, the courts below have condoned exactly the kind of viewpoint discrimination this Court has always condemned. 17 Plaintiffs do not argue, as the Fifth Circuit suggests, that an illicit motive “can turn any state action into an unconstitutional suppression of speech.” App. A at 25a (emphasis in original). Their contention is not that impure motive standing alone is actionable, but rather that illicit motive can provide salient evidence of unconstitutional viewpoint suppression. If permitted to prove their case, plaintiffs would show that the amendments to Rule XX, in purpose and effect, restrict the expression of their viewpoint, while presenting no impediment to the viewpoint espoused by the government and business interests who have so doggedly sought to silence them. Thus, this matter fits neatly into the line of cases in which the Court appears to be most willing to pierce a facially neutral rule: when there is evidence suggesting that a proffered, apparently neutral justification serves as a pretext for an unconstitutional purpose. In Edwards v. Aguillard, the Court observed that “[w]hile the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” 482 U.S. at 586-87. Similarly, the Court’s authorization for an inquiry into motive in Cornelius was triggered by evidence that “cast doubt upon [the] genuineness” of the government’s purported justification for its regulations excluding certain types of charities from the Combined Federal Campaign. 473 U.S. at 812. Concurring in Wallace v. Jaffree, Justice O’Connor has suggested that inquiry into motive is appropriate when there is objective evidence of improper intent. See 472 U.S. 38, 76 (1985) (O’Connor, J., concurring). Here, as the two lower courts grudgingly acknowledged, there is abundant evidence alleged in the complaint that the asserted rationale for amending the student practice rules MB 5 ia” “bide RANT RC OM 18 was a pretext for suppressing the views expressed by the clinics and their clients.‘ Indeed, dissenting from the amendment to the student practice rules, one of the members of the Louisiana Supreme Court, Justice Bernette Johnson, confirmed that her colleagues had been pressured to rein in the clinics because of complaints that “business in the state was being negatively impacted by [the clinics’] misguided challenges to environmental permits and other practices.” Resolution of the La. Supreme Ct. Adopting Amendments to La. Supreme Ct. R. XX (Mar. 30, 1999) (Johnson, J., dissenting). This frank acknowledgment of viewpoint suppressive motive, combined with the related extensive circumstantial evidence (including the blatant conflict of interest of the Louisiana Supreme Court’s lead staffer, Kim Sport) and the lack of evidence of any improper conduct by law clinic students or staff, are the sort of evidence of improper government action that the Court in Cornelius and Edwards v. Aguillard found violated the First Amendment. This Court has never asked federal courts to look away when confronted by evidence of viewpoint suppressive motive. The Fifth Circuit accordingly erred in holding that the Louisiana Supreme Court’s motive was irrelevant. 4. For example, after construction of the controversial Shintech plant was blocked by community groups represented by TELC, Louisiana Governor Murphy J. “Mike” Foster and various business groups launched a concerted and highly visible campaign to prevent future clinical representation of community organizations raising health and environmental claims. Governor Foster complained directly to the President of Tulane University and, when that failed, enlisted various business groups to lobby the Louisiana Supreme Court. They sought to bar clinics from representing community groups in opposing development plans favored by the Governor and industry, and to restrict their freedom to solicit clients. Compl. 1] 28-31, 33, 37, 39-40, 47, 49 (App. D at 94a-99a, 102a-104a). 19 II. The Court Should Clarify How the First Amendment Unconstitutional Conditions Doctrine Applies to Efforts to Restrict Student Practice in Faculty- Supervised Clinics Operated and Maintained by Private Law Schools. Participants in Law School Clinics May Not Be Compelled to Sacrifice Fundamental Free Speech Rights in Order to Represent Clients Under Appropriate Faculty Supervision. It has become a truism that existing precedents concerning application of the First Amendment unconstitutional conditions doctrine do not yield clear-cut guidance.* In recent years, frequent disagreements have arisen in the context of important private institutions dependent for their operation on government financial support. At issue has been the breadth of the government’s power to limit the speech-related activities pursued in private programs operating with government funds. This Court has grappled with this question in a series of cases and contexts including Rust v. Sullivan, 500 U.S. 173 (1991) (subsidized family planning programs); Rosenberger, 515 U.S. 819 (subsidized student press at public university); Finley v. National Endowment for the Arts, 524 U.S. 569 (1998) (subsidized arts programs); and Legal Services Corporation v. Velazquez, 121 S. Ct. 1043 (2001) (subsidized legal services for the poor). In this 5. See, e.g., William Glaberson, Hazy Legal Terrain: Museum Fight Pits Free Expression Against Control of Public Spending, N.Y. Times, Sept. 30, 1999, at B12 (“The Supreme Court has ducked a straight-on resolution in every case involving funding.”) (quoting Harvard Law School Professor Richard H. Fallon, Jr.); id. (“This is a black hole of First Amendment law. No one really knows how to think about it, including the Supreme Court Justices.”) (quoting University of Chicago Law School Professor David A. Strauss). 20 emerging case law, the Court has endeavored to balance grant recipients’ First Amendment rights against the government’s prerogative to choose what goals and messages to promote using the limited public funds at its disposal. See Velazquez, 121 S. Ct. at 1048-49. This case poses a related but largely unaddressed question: what are the contours of the First Amendment unconstitutional conditions doctrine when it is a non- economic government permission — not a grant of funds — that is at issue? The Fifth Circuit assumed that the same unconstitutional conditions principles that apply to government grants apply to non-economic government decisions to permit certain activity: Although the [Louisiana Supreme C]ourt is not funding the clinics, the LSC is supporting those clinics by its allowance of unlicensed students’ representation in the role of attorneys of clinic clients — an allowance that the Court was under no obligation whatsoever to grant. App. A at 26a. Relying on Velazquez and Rust — two of the Court’s leading government funding cases — the Fifth Circuit concluded that “[T]he LSC must be able to define the scope of the law practice that unlicensed students undertake as part of the clinical programs.” App. A at 26a. But it is by no means obvious that government “must be able to define the scope” of the substantive activities carried out by private law school clinics. It is true that “When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” Rosenberger, 515 U.S. at 833, 21 quoted in Velazquez, 121 S. Ct. at 1048. Moreover, even when a grant is not meant to convey a government message, but rather to subsidize the delivery of a service — for example, legal services for the poor — the government is still permitted to define (in viewpoint-neutral fashion) the categories of services for which it is willing to pay. See Velazquez, 121 S. Ct. at 1052. The rationale for permitting such government control is that the state is disbursing scarce public dollars and so must be permitted to prioritize how they are spent. The same dynamics and concerns do not obtain, however, where the government exercises its regulatory power to permit law students to represent clients under close faculty supervision. The crucial difference is that regulating private law school clinics neither involves allocation of a limited resource (like tax dollars) nor implicates questions of the government “speaking.” Because the law school clinic will not be understood as speaking for the government, and because the clinic does not cost the government anything, the justifications that permit some content regulation of government-funded private programs are absent in the context of privately funded law school clinics. The fact that the Court’s First Amendment funding case law does not readily translate to law school clinics is not to say that the Court has offered no guidance in this area. The chief basis on which the government has historically regulated the practice of law has been compliance with professional standards of accreditation and ethics. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 434 (1982). Where, however, government rules have attempted to condition permission to practice law or to pursue other professions in ways that burden First Amendment rights, the Court has responded skeptically and applied heightened 22 scrutiny. Thus, the Court has held that rules requiring bar applicants, see In re Stolar, 401 U.S. 23 (1971), or teacher candidates, see Shelton v. Tucker, 364 U.S. 479 (1960), to reveal the names of any organizations to which they may belong as a condition of licensing violate the First Amendment. But this limited case law notwithstanding, the Court has offered scant guidance on the core question of when and how student practitioners operating under faculty supervision can be forced to surrender First Amendment rights as the price of being permitted to participate in a law school Clinic. For example, why should student practitioners be precluded from appearing in any case that results from clinic efforts to provide public legal education and accompanying offers of pro bono assistance to disadvantaged communities? Similarly, as to the new group eligibility restriction, although it is praiseworthy on one level, why does the Louisiana Supreme Court’s claimed purpose of reserving privately financed law clinic representation exclusively for low- income groups and individuals qualify as a valid government interest? To be sure, low-income communities in Louisiana and across the nation have great unmet legal needs. And if the State of Louisiana were to extend grants to private universities or organizations to subsidize the delivery of legal services to those unable to afford them — something which, ironically, it does not do — the state would be free and, in fact, encouraged to target those services based on need to the state’s low-income residents. But when the government is not funding an activity, but simply permitting private universities and students to volunteer their assistance, what business is it of the state to dictate whom they may help and how — as long as the traditional regulatory criteria of competence and ethics are satisfied? 23 ; Occasionally states have attempted to wield their authority to license the practice of law so as to restrict private groups offering pro bono legal services to serving only categories of clients deemed by the government sufficiently needy or worthy. When challenged, state courts have followed this Court’s associational rights precedents and concluded that such conditions impermissibly burden the First Amendment freedoms of pro bono legal services providers to choose the clients they will serve. See In re New Hampshire Disabilities Rights Ctr., Inc., 541 A.2d 208, 215 (N.H. 1988) (Souter, J.) (state may not condition authorization of not-for-profit corporation to practice law — an exception to the general bar against practice of law by corporations — on requirement that it restrict itself to serving only low-income clients). As Justice Souter explained, writing for the New Hampshire Supreme Court, “[the] members and employees [of a non-profit public interest law organization] have an associational right under the first amendment to engage in advocacy on behalf of [their target client community] ... whether or not the clients are poor .... Id. at 215 (citing and discussing Button and related cases). Accord Application of Thom for Approval of Incorporation of Lambda Legal Defense & Educ. Fund, Inc., 301 N.E.2d 542, 544-45 (N.Y. 1973) (Burke, J., concurring) (application of public interest legal organization for non- profit corporate charter cannot be denied on grounds that organization does not limit its services to indigents). Of course, many private providers of pro bono legal services — including private universities that elect to establish law school clinics — will choose to direct their services toward low-income clients, believing that their needs are greatest. But there is a world of difference between private entities choosing how to direct the services that they 24 volunteer, and the government leveraging its licensing power into the power to dictate what clients private entities, operating entirely with private funds, may volunteer to help. Why does the state’s “greater power” to refuse to authorize law student practice embrace the “lesser power” of authorizing it but subject to limitations about to whom such services may be offered? To take an unusual but not entirely hypothetical case, if private groups and law students seek to establish a law school clinic to teach commercial litigation skills or defend principles of free enterprise by serving the legal needs of business, why does the First Amendment allow the government to refuse permission on the ground that it would prefer that they volunteer their services to different categories of clients?° Iii. The Court Should Clarify Whether Rules That Significantly Burden Efforts by Participants in Law School Clinics to Inform Persons of Their Legal Rights Are Subject to Exacting First Amendment Scrutiny. It goes without saying that if the Louisiana Supreme Court had directly prohibited clinical law professors from approaching persons to inform them of their rights and offer them representation, it would have violated clear Supreme Court precedent. See Button, 371 U.S. 415; Primus, 436 U.S. 412. The question before this Court is whether the same conclusion follows where Louisiana’s high court instead placed a dramatic burden on clinical law professors’ right to engage in such community education — a burden that forces 6. In fact, the George Mason University School of Law in conjunction with the conservative Washington Legal Foundation currently operates just such an “Economic Freedom Law Clinic.” See >, 25 a clinical law professor to choose between exercising her constitutional right to inform the community of its legal rights, and fulfilling her educational obligation to develop cases suitable for student participation. In Button and Primus, the Court identified two important components of the First Amendment “right ‘to engage in association for the advancement of beliefs and ideas.’ ” Button, 371 U.S. at 430 (quoting NAACP v. State of Alabama, ex rel. Patterson, 357 U.S. 449, 460 (1958)). The first is the freedom to engage in public interest reform litigation where pursued “for the advancement of ideas and beliefs [rather . than lawyers’] own commercial interests.” Primus, 436 U.S. at 438 n.32. The second, a significant adjunct to the first, is the right to engage in pro bono solicitation of clients. See id. at 431-32; Button, 371 U.S. at 437. See also Bates v. State Bar of Ariz., 433 U.S. 350, 377 n.32 (1977) (“Underlying [Button and its progeny] was the Court’s concern that the aggrieved receive information regarding their legal rights and the means of effectuating them.”’). Typically, such solicitation entails outreach by lawyers to members of communities adversely affected by a particular practice or problem to inform residents about their rights and offer pro bono legal assistance. As the Court has explained, [T]he efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants. ‘Free trade in ideas’ means free trade in the opportunity to persuade to action, not merely to describe the facts. The First and Fourteenth Amendments require a measure of protection for advocating lawful 26 means of vindicating legal rights, including advising another that his legal rights have been infringed and referring him to a particular attorney or group of attorneys . . . for assistance. Primus, 436 U.S. at 431-32 (citations, internal quotation marks & editing omitted). In light of this important role of pro bono solicitation, the Court has held that government restrictions on public interest solicitation “must withstand the ‘exacting scrutiny applicable to limitations on core F irst Amendment rights ....’” Jd. at 432 (quoting Buckley vy. Valeo, 424 U.S. 1, 44-45 (1976)). While recognizing this body of authority, the Fifth Circuit found that it was not controlling because the restrictions at issue in Button and Primus involved more direct government prohibitions of solicitation. App. A at l6a (“At most, Rule XX indirectly discourages speech”). The panel concluded that, instead, the restriction was subject merely to rational basis review. App. A at 18a.’ However, contrary to the court’s suggestion, the real world impact of the ban on “solicitation” imposed by Rule XX is dramatic. It functionally prevents teacher and student 7. Despite the lower court’s conclusory treatment of this issue, there is a very substantial question whether the restriction, in fact, survives even rational basis review. Rationality review requires that any government classification be “rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). The Fifth Circuit found that Rule XX “is rationally related to the LSC’s goal of discouraging solicitation generally.” App. A at 19a. But Button and Primus cast serious doubt on whether, as a matter of law, discouraging pro bono solicitation can ever constitute a “legitimate state interest.” 27 from engaging in both community education and clinical representation. Clinical professors are forbidden from educating members of the community about their legal nights and then representing them through the clinic, if clinic students are to be able to appear as practitioners in the resulting case. Indeed, as to a faculty member, violation of Rule XX’s ban on solicitation in a case in which students participate as practitioners appears to be punishable as a violation of state bar disciplinary rules, thus rendering Rule XX indistinguishable from the rule in Primus.* Moreover, as applied to law students, the restriction is equally dramatic. The purpose of a law school clinic is to permit a qualified law student, operating under close faculty supervision, to experience the responsibility and challenge of representing a client in the American legal system. The aim of the clinical experience is a greater understanding of what it means to be an American lawyer. Rule XX denies that experience to any student who engages in educational efforts in the community. By preventing law students from acting in a representative Capacity in cases where pro bono community education and solicitation has taken place, the Rule effectively forces both faculty and student to choose between educating the community and representing it. The Fifth Circuit sought to minimize the impact of this restriction, theorizing that while the Rule discourages legal outreach, it does not technically foreclose a clinic from taking 8. A licensed clinic professor who exercises her right to solicit and then has a student enter an appearance in the resulting case would appear to violate La. R. or Pror. Conn. 5.5(b), which forbids a lawyer from “[a]ssist[ing] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.” Violations of state rules of professional conduct are grounds for lawyer discipline. La. Sup. Ct. R. XIX § 9(a). 28 on cases in which the students cannot practice. App. A at 20a. But such an effort to minimize the impact of Rule XX ignores the very purpose of student law school clinics, which exist in order to train student lawyers and which depend on students’ acting in that capacity in order to permit them to experience the demands of actual law practice. Thus, not only is the anti-solicitation regulation a clear violation of traditional First Amendment doctrine, it is also an impermissible interference with the academic freedom of legal educators to shape the experience of student participants in a law school clinic. No basis whatsoever exists for a state- imposed rule that forces students in a law school clinic to forgo learning about representation of clients as the price of learning about community legal education. An excellent law school clinic teaches students to explain legal rights, as well as to enforce them. Accordingly, on both traditional free speech and academic freedom grounds, the anti-solicitation rules are clearly unconstitutional. i. = eee = to 29 CONCLUSION For the foregoing reasons, the Petition for a Writ of Certiorari shculd be granted. JupitH L. MoGuL 18 Wyndham Road Scarsdale, NY 10583 Mary E. Howe. HOwELL & SNEAD 316 South Dorgenois Street New Orleans, LA 70119 MARJORIE R. ESMAN 701 South Peters Street . Suite 100 New Orleans, LA 70130 Respectfully submitted, Davip S. UDELL Counsel of Record BRENNAN CENTER FOR JUSTICE AT NYU Scuoo. oF LAw PAUL K. SONN BuRT NEUBORNE E. JOSHUA ROSENKRANZ PHILIP G. GALLAGHER 161 Avenue of the Americas Twelfth Floor New York, NY 10013 (212) 998-6730 Attorneys for Petitioners SY Se APPENDIX la APPENDIX A — OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT DATED MAY 29, 2001 UNITED STATES COURT OF APPEALS FIFTH CIRCUIT No. 99-30895 SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, LOUISIANA CHAPTER; ST. JAMES CITIZENS FOR JOBS & THE ENVIRONMENT; CALCASIEU LEAGUE FOR ENVIRONMENTAL ACTION NOW; HOLY CROSS NEIGHBORHOOD ASSOCIATION; FISHERMEN & CONCERNED CITIZENS’ ASSOCIATION OF PLAQUEMINES PARISH; ST. THOMAS RESIDENTS COUNCIL; LOUISIANA ENVIRONMENTAL ACTION NETWORK; LOUISIANA ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW; NORTH BATON ROUGE ENVIRONMENTAL ASSOCIATION; LOUISIANA COMMUNITIES UNITED; ROBERT KUEHN; CHRISTOPHER GOBERT; ELIZABETH E. TEEL; JANE JOHNSON; WILLIAM P. QUIGLEY; TULANE ENVIRONMENTAL LAW SOCIETY; TULANE UNIVERSITY GRADUATE AND PROFESSIONAL STUDENT ASSOCIATION; INGA HAAGENSON CAUSEY; CAROLYN DELIZIA; DANA HANAMAN, Plaintiffs-Appellants, v. SUPREME COURT OF THE STATE OF LOUISIANA, Defendant-Appellee. 2a Appendix A May 29, 2001 * * * Appeal from the United States District Court for the Eastern District of Louisiana Before GODODWIN,* GARWOOD and JONES, Circuit Judges. GARWOOD, Circuit Judge: On April 16, 1999, the Plaintiffs! filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Louisiana, alleging that Louisiana Supreme Court Rule XX impermissibly suppresses Plaintiffs’ freedoms of speech and association as protected under the First and Fourteenth Amendments. The complaint seeks injunctive and declaratory relief, costs and attorneys’ fees. Defendant, the Louisiana Supreme Court (LSC),? filed two * 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. 3a Appendix A motions, asking the district court to dismiss the action under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, and, in the alternative, to dismiss for lack of standing. Oral argument was held on July 21, 1999, and on July 27, 1999, the district court granted the LSC’s motions. This appeal by Plaintiffs followed. We affirm. Facts and Proceedings Below In 1971, the LSC adopted the precursor to what is now Rule XX, which for the first time allowed the limited practice of law by students as part of supervised clinical education programs in Louisiana law schools. The rule allowed eligible law students in certain circumstances to appear in court or before administrative tribunals in a representative capacity on behalf of the state, its subdivisions, or any indigent person. In 1988, the LSC amended Rule XX to clarify that the rule also allowed students to represent indigent community organizations. See Louisiana Supreme Court Rule XX (1988). It is the LSC’s most recent set of amendments to Rule XX that prompted the current suit. The rule as it exists now, and as it has always existed, operates only to set forth the limited circumstances under which unlicensed law students may engage in the practice of law in Louisiana; it has no other reach. Over the years, several Louisiana law school clinics, including the Tulane Environmental Law Clinic (TELC), have supplied legal advice and representation to numerous individuals and various community organizations. In 1996, TELC agreed to represent St. James Citizens for Jobs and the Environment (St. James Citizens), a group of 4a Appendix A approximately one hundred low-income and working-class residents of St. James Parish. St. James Citizens was formed in response to a proposal by Shintech, a chemical manufacturer, to build a chemical plant in Convent, a small town in St. James Parish. The group was dedicated to resisting the construction of the Shintech plant in their community and to raising public awareness of community environmental and health concerns related to the proposed plant. TELC represented St. James Citizens in a variety of ways: at hearings before the Louisiana Department of Environmental Quality, in state court, and by filing objections to the proposed plant with the EPA. Eventually the resistance of the local community to the new plant drove Shintech to reject Convent as its site, and the plant was located elsewhere in Louisiana. According to the Plaintiffs’ complaint,’ TELC’s representation of St. James Citizens induced significant criticism of the clinic from political and business leaders in Louisiana. The complaint alleges that various Louisiana business and political leaders, including Governor Foster, tried to convince Tulane University to curtail the endeavors of TELC. Tulane University proved unresponsive to this pressure, and so, according to the complaint, the “powerful political and business interests” opposed to the clinic turned their attention to the LSC. The complaint alleges that these political and business interests urged the LSC to prevent TELC and other clinics from continuing to aid community 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 (Sth _ Cir.1999). Sa Appendix A groups in giving voice to environmental and health concerns. The Plaintiffs allege several specific incidents that they claim document the political pressure exerted on both Tulane and the LSC, including phone calls from Governor Foster to the President of Tulane University, statements of Governor Foster at a meeting of the New Orleans Business Council requesting assistance in curtailing the efforts of TELC, various public criticisms of TELC by Governor Foster, a letter from a chamber of commerce organization urging the LSC to eliminate the TELC because the faculty and students involved were “in direct conflict with business positions,” and letters from various business organizations, including the Business Council, the Louisiana Association of Business and Industry, and The Chamber/Southwest Louisiana, urging the LSC to eliminate TELC. Allegedly in response to the concerns of the Governor and business groups, in the fall of 1997 the LSC launched an official investigation into the activities of TELC and Louisiana’s other law school clinics. The results of this investigation have not been made public, but the Plaintiffs allege in their complaint that two Justices of the LSC have disclosed that the investigation did not reveal any inappropriate or unethical behavior by any person associated with any Louisiana law school clinic. The LSC did in fact alter its rule concerning student practitioners, and on March 22, 1999, the Court announced the amendments that established the current form of Louisiana Supreme Court Rule XX. The amendments became effective April 15, 1999, and by their terms “shall not impact or apply to any cases, and/or the representation of any clients, 6a Appendix A in which the representation commenced prior to the effective date of the amendments.” The amendments to Rule XX altered the existing rule in two ways that are relevant to the present case. First, the rule’s indigence requirements were tightened. The new rule allows representation of individuals or families only if their annual income does not exceed 200% of the federal poverty guidelines. The rule also now requires that any indigent community organization that wishes to obtain representation from a clinic must certify in writing its inability to pay for legal services, and at least fifty-one percent of the members of the organization must meet the income guidelines. The second major change to Rule XX involves the community outreach efforts of the law school clinics. Under the new rule, clinical student practitioners are prohibited from representing in the role of attorneys an otherwise qualified individual or organization if any person associated with the clinic initiated contact with that individual or organization for purposes of that representation.‘ 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 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 (Cont’d) 7a Appendix A In response to the LSC’s new Rule XX, the Plaintiffs filed this lawsuit on April 16, 1999. In an opinion dated July 27, 1999, the district court dismissed the case for lack of standing and for failure to state a claim. The district court held that the complaint failed to establish the deprivation of any cognizable federal right. The court found that the indigence requirements did not implicate any freedom of association or speech, and that the limitation of clinical services to the poor was rationally related to a legitimate government purpose. Southern Christian Leadership Conference v. Supreme Court, 61 F.Supp.2d 499, 511 (E.D.La.1999). The court noted that the LSC has broad power to regulate student practice, and held that in this context, the solicitation restrictions of Rule XX did not violate the First Amendment. The court reasoned: “While free speech rights do exist in this area, they are precariously perched when balanced against the imperatives (Cont'd) 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. ‘Ba Appendix A of protecting the public and monitoring professional ethics. Particularly where student solicitation of potential clients is involved, concern for protecting the public grows considerably.” /d. at 512. Applying rational basis review, the court held that the solicitation restrictions were justified because the restrictions were rationally related to the state’s legitimate interest in protecting the public and monitoring professional ethics. Jd. The court also dismissed the Plaintiffs’ claims of viewpoint discrimination, holding that the political motivations of the LSC could not transform an otherwise permissible action into a constitutional violation. Id. at 513. Accordingly, the district court dismissed the Plaintiffs’ claims in their entirety. This appeal followed. Discussion We review de novo a district court’s dismissal for failure to state a claim under Rule 12(b)(6). Leffall v. Dallas Independent School Dist., 28 F.3d 521, 524 (Sth Cir.1994). In considering a motion to dismiss, the complaint should be construed in favor of the plaintiff, and all facts pleaded should be taken as true. Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir.1999). Motions “to dismiss for failure to state a claim [are] ‘viewed with disfavor, and [are] rarely granted.’ ” Tanglewood East Homeowners v. Charles- Thomas, Inc., 849 F.2d 1568, 1572 (Sth Cir.1988) (quoting Sosa v. Coleman, 646 F.2d 991, 993 (Sth Cir.1981)). A Rule 12(b)(6) dismissal will not be affirmed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). However, “conclusory allegations or legal 9a Appendix A conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (Sth Cir.1993). In the context of a 12(b)(6) motion in a section 1983 suit, the focus should be “whether the complaint properly sets forth a claim of a deprivation of rights, privileges, or immunities secured by the Constitution or laws of the United States caused by persons acting under color of state law.” Fontana v. Barham, 707 F.2d 221, 225 (5th Cir.1983). If there is no deprivation of any protected right the claim is properly dismissed. /d. The Plaintiffs make a variety of claims, but their challenges to Rule XX fall into two basic groups. First, they claim that the rule is invalid on its face as an impermissible restriction of the First Amendment freedoms of the individuals and organizations that are parties to this suit. This first type of claim encompasses challenges to both of the substantive changes the LSC has made in Rule XX: the new, more specific indigence requirements as well as the restriction on student representation in the role of an attorney of any group or individual whose representation has been solicited by any person associated with the clinic. The Plaintiffs’ second general claim is that regardless of whether Rule XX, on its face, restricts speech in violation of the First Amendment, the rule was enacted in retaliation for the clinics’ and their clients’ political speech and advocacy in the Shintech matter, and is therefore an impermissible form of viewpoint discrimination. The Plaintiffs’ claim that the LSC amended Rule XX in direct response to pressure from business interests who were 10a Appendix A opposed to the TELC’s environmental outreach and advocacy. This second claim depends heavily on the motivation of the LSC in enacting Rule XX. In general, the LSC challenges the standing of all of the Plaintiffs in this suit, and alleges that none of the parties have suffered an injury in fact sufficient to justify this challenge to Rule XX. In response to the first set of claims, the LSC points out that the indigence requirements are not unlike those of several other states and the federal government, that the income level that disqualifies individuals from clinic representation is significantly higher than the standard used by many states and the federal Legal Services Corporation, and that since none of the client organizations are entitled to pro bono representation in civil cases there has been no actionable deprivation of any protected right. The LSC responds to the Plaintiffs’ attack on the solicitation restrictions by arguing that there is no right of non-lawyers to represent others in litigation, that the litigation activities the clinics engage in cannot be considered “speech” and that therefore no party’s “speech” or other rights have been impacted. The LSC responds to the viewpoint discrimination claims in much the same way, arguing that Rule XX does not affect any party’s rights of association or free speech. The LSC argues that although attorneys may have speech and associational freedoms that protect pro bono representation of clients for political reasons, lay persons and law students have no such rights. Since Rule XX does not affect the ability of any attorney to represent pro bono clients, the LSC argues, the rule does not implicate any protected speech or associational interests. lla Appendix A Thus, this case involves four issues: (1) whether the Plaintiffs have standing; whether Plaintiffs have stated a claim that Rule XX, on its face, violates protected freedoms of speech and association by (2) the tightening of the indigence requirements or by the (3) imposition of solicitation restrictions on student representation in the role of an attorney; and (4) whether the LSC’s promulgation of the rule constitutes actionable viewpoint discrimination in this context. Standing All of the Plaintiffs in this case fall into one of four categories. The first group is comprised of community organizations and individuals that have either been clients of the student clinics or who are concerned that they will not be able to obtain representation from the clinics in the future. The second consists of law professors and clinical law instructors who oversee or are otherwise involved in the student clinics. The third group consists of three Tulane University law students, two third year students who were “student practitioner” members of TELC during the 1998-99 academic year and one second year student who had been accepted as a TELC member and “student practitioner” for the 1999-2000 academic year. The fourth and last group consists of two student organizations, the Tulane Environmental Law Society (an organization of students that includes some of the students enrolled in the Tulane Environmental Law Clinic) and the Tulane Graduate and Professional Student Association.’ Neither Tulane University 5. Another individual party plaintiff below (Shearer) did not join in this appeal; consequently, we disregard him. ee 12a Appendix A nor TELC is a party to the suit; nor is any other university or law clinic. To satisfy the standing requirement, a party must establish basic three elements. First, the plaintiff must have suffered an injury in fact. An “injury in fact” is an invasion of a legally protected interest which is both (a) concrete and particularized, and (b) actual or imminent and not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Second, there must be a causal connection between the injury and the conduct complained of — in other words, the injury must be traceable to the defendant and not the result of the independent action ofa third party. Jd. Third, the injury must be redressible; it must be likely, as opposed to merely speculative, that a favorable decision will redress-the plaintiff's injury. Jd. The party invoking federal jurisdiction bears the burden of establishing these elements, but “Talt the pleading stage, general factual allegations of injury~ resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general factual allegations embrace those specific facts that are necessary to support the claim.’” Jd. (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990)). / According to the complaint, Rule XX directly regulates the operations of law school clinics in Louisiana and significantly alters the ways in which those clinics can permissibly function. Further, the complaint alleges that under the new rule, several of the client organizations will hereafter be unable to obtain representation from the clinics. 13a Appendix A Given the expansive and deferential way in which we construe pleadings at this stage of a suit, we find that Rule XX has enough of an impact on at least some of the Plaintiffs so as to constitute an injury in fact. At least some of the Plaintiffs have standing to bring each type of claim currently before the court. Accordingly, we next address the merits of the Plaintiffs’ claims. We begin with the Plaintiffs’ claim - that the indigence and solicitation restrictions, on their face, improperly infringe on the Plaintiffs’ rights under the First Amendment. Indigence Requirements Rule XX now requires that clinical student practitioners represent only those individuals who are “indigent,” which is defined as having an annual income that is less than 200% of the current federal poverty guidelines as established by the Department of Health and Human Services. Louisiana Supreme Court Rule XX, section 4. As the commentary to Rule XX points out, applying the current federal poverty standards the clinics are permitted to represent an individual if his annual income is less than $16,480, and may represent a family of four if the family’s annual income is less than $33,340. Jd. Contrary to the Plaintiffs’ assertions, the rule does not require individuals to provide detailed financial information to obtain representation — the rule simply states that the clinics may only represent individuals who fall within the income guidelines. The Plaintiffs claim that this aspect of the rule subjects their clients to invasive discovery intended to obtain embarrassing financial information. However, the LSC has always required that student practitioners represent only “indigent” community l4a Appendix A organizations. See Louisiana Supreme Court Rule XX, section 3 (1988). Also, the assertion that improper discovery requests will dramatically increase is clearly based almost entirely on speculation, and in any event can be adequately addressed in any particular instance in which it does arise. This part of the rule does not, on its face, restrict speech in any way other than to limit clinical representation to clients who are poor. The indigence requirements alone implicate no speech interests, and are simply subject to Equal Protection requirements. Classifications based on wealth alone are not subject to strict scrutiny. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 1293-94, 36 L.Ed.2d 16 (1973). Strict scrutiny, therefore, is inappropriate in a facial challenge of this part of Rule XX. Under rational basis review, the indigence requirements are valid. They are rationally related to one of the stated purposes of Rule XX: providing representation to those who cannot afford it for themselves. See Louisiana Supreme Court Rule XX, section 1. Because the indigence requirements do not, on their face, implicate any speech interests the district court was correct to dismiss this part of the Plaintiffs’ challenge to Rule XX. Solicitation Restrictions The Plaintiffs argue that section 10 of Louisiana Supreme Court Rule XX is an impermissible restriction on their rights of free speech and association protected by the First Amendment. While this may be a closer question than the challenge to the indigence requirements, we conclude that section 10 does not impermissibly restrict the Plaintiffs’ speech. 15a Appendix A The First Amendment prohibits the government from enacting solicitation restrictions that prevent attorneys from offering their services pro bono to individuals or groups. For example, the Supreme Court held in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), that Virginia could not prohibit the NAACP from advising individuals of their legal rights and referring those individuals to lawyers. And, in Jn re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), the Court held that a lawyer could not be constitutionally subjected to discipline for informing members of the public of their legal rights and offering free legal services on behalf of the ACLU. The Plaintiffs cite both Button and Primus for the proposition that all pro bono legal advocacy (even when conducted by persons who are not licensed attorneys) is protected speech that cannot be infringed without a compelling state interest. A careful examination of those decisions reveals, however, significant differences from the restrictions in the present case. For example, in both Button and Primus, the solicitous speech was itself prohibited. In Button, under Virginia’s statute solicitation was a misdemeanor, and the penalties for solicitation included imprisonment for up to six months. Button, 83 S.Ct. at 334 n. 7 (citing Va.Code § 54.82 (1958)). Similarly, Edna Primus’s letter soliciting a client on behalf of the ACLU was, in and of itself, a violation of the South Carolina bar’s disciplinary rules. See Primus, 98 S.Ct. at 1898-1900. In both cases, the solicitous speech itself was prohibited, and engaging in such speech subjected the speaker to criminal or disciplinary sanctions. l6a Appendix A In contrast, nothing in Rule XX prohibits or prevents speech of any kind. Rule XX does not prevent the clinics or their members from engaging in outreach, or even from contacting particular clients, advising them of their rights, and offering and then proceeding to represent those clients. The rule only prohibits the non-lawyer student members of the clinics from representing as attorneys any party the clinic has so solicited. Since the rule does not directly regulate speech and the ability of unlicensed students to practice law need not exist at all, it is inaccurate to describe the restrictions in Rule XX as impairing or prohibiting speech. No one is required to participate in any of the clinical programs, and even if someone chooses to, they are not punished for or prohibited from speaking. At most, Rule XX indirectly discourages speech — by refusing the educational experience of acting as an attorney in a particular matter to unlicensed student practitioners in clinics whose members or employees engaged in solicitation of that matter. The impact of Rule XX’s section 10 (see note 4, supra) on the educational experience is far from extreme. The students are not prohibited from or restricted in working on clinic solicited cases as paralegals, as legal (or factual) researchers, or as trial assistants,° and they are not subject to 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. (Cont'd) 17a Appendix A discipline for contacting potential clients and informing them of both their rights and that free legal representation is available from the clinics. And, targeted solicitation only implicates the students’ representation as attorneys of that particular client — students would remain free to-represent as an attorney other clients who were not solicited by the clinic.’ These limitations are a far cry from the criminal and disciplinary sanctions invalidated by the Supreme Court in Button and Primus.® The other major difference between this case and Button and Primus is, of course, that the student practitioners are not licensed members of the bar. The LSC has a heightened interest in overseeing the practice of law by non-attorneys in Louisiana. Indeed, the LSC need not have ever allowed — and did not at all until relatively recently — non-attorneys to (Cont’d) 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. 18a Appendix A participate in the actual practice of law in Louisiana. The ability of students to represent clients as attorneys in legal matters is entirely the relatively recent creation of the LSC and continues to exist entirely at the LSC’s complete discretion.’ The clinical programs are an educational benefit that the LSC has decided to grant to Louisiana law students. Rule XX’s solicitation restrictions do not prohibit or punish speech, they merely limit one aspect of the participation of unlicensed students in clinical education programs — namely doing what only an attorney can otherwise do — to representing as attorneys nonsolicited clients. And, this limitation is entirely viewpoint neutral.'® Rule XX is significantly different from the criminal or quasi-criminal prohibitions of speech invalidated by the Supreme Court in Button and Primus. We conclude that the district court was correct to subject section 10 of Rule XX to rational basis review. The stated rationale for section 10 is to further “the Court’s policy against solicitation of legal clients generally, 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, 152 La. 945, 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. 19a Appendix A 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. . . .” Louisiana Supreme Court Rule XX section 10, Commentary. Section 10 is rationally related to the LSC’s goal of discouraging solicitation generally. The nature of the solicitation provision, combined with the unique status of the clinics’ student practitioners, convince us that section 10 of Rule XX is a constitutional exercise of the LSC’s regulatory power. By allowing unlicensed law students at clinics to practice law under limited conditions, the LSC furthers two goals: providing legal representation to poor Louisianians and providing educational opportunities to Louisiana law students. See Louisiana Supreme Court Rule XX section 1 (“As one means of providing assistance to clients unable to pay for [legal] services . . . the following rule is adopted.”). In Legal Services Corporation v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043, 1049-51, 149 L.Ed.2d 63 (2001), the Supreme Court invalidated a congressional funding restriction that prohibited Legal Services Corporation attorneys from participating in cases attempting to reform or challenge a state or federal welfare system. The Court - held that the restrictions unconstitutionally regulated private expression in an arena in which Congress had funded Legal Services Corporation attorneys to represent indigent litigants. Velazquez, 121 S.Ct. at 1051-52. A major concern of the Court was that the restrictions would do more than simply prevent representation in certain classes of cases; the restrictions, the Court noted, would interfere with attorneys’ 20a Appendix A advocacy of their clients by preventing them from making certain arguments in particular cases: “Restricting [Legal Services Corporation] attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys. . . . By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.” /d. at 1050-51. The fact that a Legal Services Corporation lawyer could withdraw from a representation if a problem arose did not, according to the Court, alleviate the problems the rule caused. Jd. at 1051. In Velazquez, the Court noted that “Congress was not required to fund a [Legal Services Corporation] attorney to represent indigent clients, and when it did so, it was not required to fund the whole range of legal representations or relationships. The [Corporation] and the United States, however, in effect ask us to permit Congress to define the scope of the litigation it funds to exclude certain vital theories and ideas.” Velazquez, 121 S.Ct. at 1052. In contrast to the regulations in Velazquez, Rule XX does not limit speech by the clinics’ members — any person associated with a clinic can engage in any sort of outreach activity and can even solicit individual clients. Indeed, the clinics are allowed to represent clients so solicited, with one caveat — the students, who are not lawyers, may not represent, as lawyers, any client so solicited. Unlike the regulations struck down in Velazquez, Rule XX imposes no restrictions on the kind of representations the clinics can engage in or on the arguments that can be made on behalf of a clinic client. Rule XX applies 2la Appendix A to all clinic students equally, and is entirely viewpoint neutral. Nothing in Rule XX implicates the proper functioning of the judicial system. None of the special considerations present in Velazquez apply in the context of this case. The parties in Button and Primus were licenced attorneys, the student clinical practitioners are not. Instead, they are the beneficiaries of an educational program that the LSC has decided to permit and which the LSC could end at will. Moreover, unlike the criminal sanctions and disciplinary penalties involved in Button and Primus, the restrictions imposed by Rule XX do not regulate or prohibit speech directly. And, none of the special concerns mentioned by the Court in Velazquez are implicated by Rule XX. The First Amendment does not prohibit the LSC from imposing this viewpoint neutral limit on the scope of unlicensed law students’ educational use, as attorneys, of the Louisiana courts. Viewpoint Discrimination and Retaliation Our holding that the solicitation requirements are facially permissible does not end our inquiry. The Plaintiffs also claim that the enactment of Rule XX constitutes an unconstitutional attempt by the Court to suppress political speech it has deemed undesirable. Specifically, the Plaintiffs allege that the Governor and various business interests pressured the Court into enacting Rule XX because of the success of the clinics and community organizations in their attempts to resist the construction of chemical plants in their communities. The Plaintiffs argue that even if Rule XX is 22a Appendix A an otherwise permissible restriction, the Court’s allegedly suppressive motivation in enacting Rule XX transforms the rule into an unconstitutional action. Since the rule is facially viewpoint neutral and is not otherwise constitutionally objectionable, this claim depends entirely on the effect the Court’s alleged motivation has on the constitutionality of Rule XX. Although the jurisprudence in this area is less than clear, there is some support for the Plaintiffs’ contentions that the motivation of a state actor can transform an otherwise permissible action into a violation of the First Amendment. The Supreme Court has held that the motivation of a legislature or other state actor can be the primary factor in the constitutional analysis of state action in other areas of First Amendment law, such as cases involving the Establishment Clause or the termination of public employees because of protected speech. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (striking down a state statute requiring equal time for “creation-science” based on the motivation of the legislature as indicated in the statute’s legislative history); Perry vy. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972) (finding a suit by a junior college professor whose contract had not been renewed, allegedly because of the professor’s public criticism of the Board of Regents, to present a “bona fide constitutional claim”). In Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), the Supreme Court upheld as against a facial challenge an executive order which limited participation in a charity drive 23a Appendix A ‘ among federal employees (the “CFC”) to organizations that provided direct health and welfare services to individuals or their families. The order excluded legal defense and political advocacy groups. The district court and the court of appeals had sustained the facial challenge, but had not addressed the argument of the plaintiffs (respondents), the NAACP Legal Defense & Education Fund and other legal defense funds, that they were excluded from the CFC because the government disagreed with their viewpoints. The Supreme Court reversed the decisions of the lower courts facially invalidating the order. The court went on to state, however: “While we accept the validity and reasonableness of the justifications offered by petitioner for excluding advocacy groups from the CFC, those justifications cannot save an exclusion that is in fact based on the desire to suppress a particular point of view.” — “. .. the purported concern to avoid controversy excited by particular groups may conceal a bias against the viewpoint advanced by the excluded speakers. ... Organizations that do not provide direct health and welfare services, such as the World Wildlife Fund, the Wilderness Society, and the United States Olympic Committee, have been permitted to participate in the CFC . . . .the issue whether the Government excluded respondents because it disagreed with their viewpoints was neither decided below nor fully briefed before this Court. We decline to decide in the first instance 24a Appendix A whether the exclusion of respondents was impermissibly motivated by a desire to suppress a particular point of view. Respondents are free to pursue this contention on remand.” Id. at 3454. This language in Cornelius provides the Plaintiffs with some support for their claim, but is not controlling in the present context. Cornelius involved a rule which actually prevented certain groups from speaking. The executive order in Cornelius was viewpoint neutral, but it did exclude speakers from a nonpublic forum on the basis of both their identity and the content of their speech. Jd. at 3451. Those speakers were shut out of a forum of which they might otherwise have availed themselves, and in that way the order directly regulated speech within that forum. Other speakers, such as the Wilderness Society, were not excluded. Rule XX, in contrast, does not create a forum for speech,'! does not exclude any speaker from any opportunity to speak, and does not in any way prohibit or punish speech. Nor does Rule XX in any way distinguish between speakers on the basis of the content of their message. There is no “picking and choosing” here. Instead, the Plaintiffs allege, the rule makes it somewhat more difficult to obtain and to provide free legal services. While Cornelius does indicate that an individual or group cannot be excluded from even a nonpublic forum on the basis of viewpoint, we do not agree with the Plaintiffs that the case requires us to examine the motivation underlying every governmental decision for viewpoint neutrality. 11. Nor do Plaintiffs argue that Rule XX creates any kind of forum for speech. 25a Appendix A Additionally, the Plaintiffs’ assertion that Cornelius stands for the proposition that the motivation or purpose of a State actor can turn any state action into an unconstitutional suppression of speech or viewpoint is belied by the Court’s decision in Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). In Rust, the Supreme Court upheld Department of Health and Human Services regulations that attached several conditions on the receipt of federal funds for Title X projects. Among the regulations were requirements that Title X projects refrain from providing counseling concerning abortion as a method of family planning, and programs that received Title X money were expressly prohibited from referring a pregnant woman to an abortion provider, even upon request. Rust, 111 S.Ct. at 1765 (citing 42 C.F.R. § 59.8(a)-(b) (1989)). The Supreme Court held that the government was entitled to “refus[e] to fund activities, including speech, which are specifically excluded from the scope of the project funded.” Jd. at 1773. The restrictions on speech upheld in Rust explicitly prohibited the expression of a particular viewpoint by program participants. In later cases, the Court has limited the holding of Rust to occasions in which the government itself is the speaker, or to “instances, like Rust, in which the government ‘used private speakers to transmit information pertaining to its own program.’ ” Velazquez, 121 S.Ct. at 1048 (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 2519, 132 L.Ed.2d 700 (1995)). There are differences between Rust and the present case. The LSC is not itself a speaker — there is no government message that the clinics are relaying to their clients. And, Rule XX does not clearly qualify as an attempt by the LSC 26a Appendix A to use private speakers to transmit information pertaining to its own program. On the other hand, the LSC need not have allowed any unlicensed student to serve in an attorney representative capacity. The Court has chosen to allow the unlicensed student clinic members to engage in the practice of law in Louisiana under certain conditions. Although the court is not funding the clinics, the LSC is supporting those clinics by its allowance of unlicensed students’ representation in the role of attorneys of clinic clients — an allowance that the Court was under no obligation whatsoever to grant. The analogy between Rust and the present case is an imperfect one, but we think that Rust, while not controlling, informs our current decision. The fact that the state decides to fund or support a program does not give the government carte blanche to restrict the rights of program participants. See Velazquez, 121 S.Ct. at 1049-50; Rust, 111 S.Ct. at 1776. But, at the same time, the LSC must be able to define the scope of the law practice that unlicensed students undertake as part of the clinical programs. We accordingly turn to an examination of the effects of Rule XX and the alleged motivation of the LSC in its enactment. The issue here is whether the Plaintiffs’ allegations of suppressive purpose, if true, would render Rule XX unconstitutional. The Plaintiffs have alleged facts that may arguably support their claim that the LSC reacted to pressure from the Governor and business interests who bore the TELC significant animus. But the Plaintiffs’ allegations of improper purpose, while extensive, do not focus on the LSC. Although the Plaintiffs have certainly alleged animus on the part of the Governor and various business groups, there is no express 27a Appendix A allegation, nor do the facts alleged tend to suggest, that the LSC itself bore any particular ill will towards any of the Plaintiffs. Instead, the complaint in essence alleges that the LSC gave in to pressure from others to restrict the activities of the student clinics. The Plaintiffs allege that Rule XX was enacted to silence the TELC, but the rule is of wholly general and prospective application — it applies to all student legal clinics in Louisiana, not just TELC. Plaintiffs can be understood to have asserted that the LSC ultimately bore some character of ill will towards the TELC, at least on account of its activities having generated unwanted political pressure on the LSC, and that the LSC accordingly desired to defuse the political pressure, and to diminish the likelihood of the recurrence of similar activities in the future, by enacting the challenged amendments to Rule XX. Such an alleged motivation on the part of the LSC does not, however, transform Rule XX into an unconstitutional state action. The fundamental purpose behind the First Amendment is to promote and protect the free expression of ideas, unfettered by government intrusion. We are convinced, however, that Rule XX will produce no legally significant chilling effect on the expressive speech of any of the Plaintiffs in this case. Rule XX does in effect impose some restrictions on clinic activities, and, according to the complaint, the solicitation restrictions and the new, more strict indigence requirements will result in a decrease in the availability of clinical representation for some of the - Plaintiffs. Some of the client organizations in this case may indeed find it somewhat more difficult to qualify for clinic representation in the wake of Rule XX, and the clinics themselves will either be forced to change their educational 28a Appendix A model or to refrain from soliciting particular clients. But, even this minimal impact on the clinics and the client organizations is “suppressive” only in comparison to the earlier version of Rule XX. This is a crucial distinction. We conclude that a refusal to promote private speech is not on a par with a regulation that prohibits or punishes speech, or which excludes a speaker from a public or nonpublic forum.'” Rather than stamping out or suppressing private speech, the LSC’s action has reduced the availability of support for such speech, and the LSC — the highest judicial body in Louisiana exercising its undisputed power and responsibility — has reduced this support by an across-the-board, wholly prospective and viewpoint neutral general rule. We are convinced that the new version of Rule XX will not silence any group or individual’s speech except to the extent that it ceases to support private speech. The United States Constitution does not require the LSC to continue its support for the clinical education programs until its motives are shown to be pure. The LSC need not have ever allowed unlicensed students to practice law in Louisiana, and indeed did not do so until 1971, and that Court can end thé program at any time, and for any reason.'* The motivation of the LSC, 12. Nor does Rule XX impermissibly interfere with the content of the private speech promoted as in Velazquez. 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. 29a Appendix A in this limited context, is irrelevant. As the Supreme Court stated in Rust, “[t]his is not a case of the Government “suppressing a dangerous idea,’ but of a prohibition on a project grantee or its employees from engaging in activities outside of the project’s scope.” Rust, 111 S.Ct. at 1772-73. The LSC’s amendment of Rule XX does not, under these circumstances, constitute impermissible viewpoint discrimination in violation of the First Amendment. Conclusion For the foregoing reasons, the judgment of the district court dismissing the action is AFFIRMED. 30a APPENDIX B — ORDER AND REASONS OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA DATED JULY 27, 1999 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA No. CIV. A. 99-1205 SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, LOUISIANA CHAPTER, et al. v. SUPREME COURT OF THE STATE OF LOUISIANA July 27, 1999. * * ORDER AND REASONS FALLON, District Judge. Before the Court is the Motion of Defendant Louisiana Supreme Court to Dismiss Plaintiffs’ Complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and for lack of standing. For the following reasons, the Defendant’s Motion to Dismiss pursuant to Rule 12(b)(6) is hereby GRANTED, and the Plaintiffs’ Complaint is hereby DISMISSED with prejudice, and with costs. 3la Appendix B BACKGROUND A. Factual Overview In 1971, the Louisiana Supreme Court adopted Rule XX, entitled “Limited Participation of Law Students in Trial Work.” See La. Sup.Ct. R. XX. Section 1 of the Rule stresses the primary responsibility of the bench and bar for supplying legal services to all persons, including those unable to afford them. Section 1 further declares that the adoption of Rule XX should serve “[a]s one means of providing assistance to clients unable to pay for such services and to encourage law schools to provide clinical instruction in trial work of varying kinds.” Jd. § 1. The Rule permits an eligible law student to appear in court or before administrative tribunals in a representative capacity on behalf of the state, its subdivisions, or any indigent person. See id. § 3. The Louisiana Supreme Court amended the original rule in 1988 to include student representation of indigent community organizations. Over the years several law school sponsored clinics, including the Tulane Environmental Law Clinic (“TELC”), have supplied legal advice and representation to various indigent community organizations. According to the Plaintiffs’ Complaint, sometime around November 1996 Plaintiff St. James Citizens for Jobs & the Environment (“St. James”) sought TELC’s assistance in opposing the construction of a polyvinyl chloride and ethylene dichloride production facility by Shintech in the St. James Parish town of Convent. See Pls.’ Compl., J 23. St. James opposed the plant’s location on the grounds that, as a small, lower income and predominantly African-American community, Convent 32a Appendix B was already host to a disproportionate share of chemical facilities posing risks to both the environment and to the health of local inhabitants. St. James avers that it was unable to secure legal representation in its fight against Shintech from any source other than TELC. TELC appeared at hearings on behalf of St. James and some of the other Plaintiffs to this suit, and opposed the Shintech project. After the Louisiana Department of Environmental Quality (“LDEQ”) submitted proposed air permits for the plant, TELC filed objections to them with the U.S. Environmental Protection Agency (“EPA”). In April 1997, EPA instructed LDEQ to reevaluate the proposals in light of the environmental justice concerns raised by TELC on behalf of its clients. See id. 26. TELC then filed additional objections, contending that the air permits violated a Presidential Executive Order on environmental justice as well as Title VI of the Civil Rights Act of 1964. Shintech eventually decided to locate elsewhere. Plaintiffs allege that TELC’s successful advocacy “provoked intense criticism and retribution” from business and political leaders around Louisiana. See id. | 28. They further assert that the Governor, citing concerns that TELC and other groups like it were discouraging business investment in Louisiana, mounted an aggressive campaign aimed at galvanizing business interests to exert pressure on Tulane University to reign in the clinic. See id. J 28-29. In turn, these business groups sent a series of letters to the Louisiana Supreme Court, complaining about TELC’s activities and asking for tighter regulation of student practice. See id. J 30-40. After conducting an investigation, 33a Appendix B the Supreme Court on June 17, 1998 amended Rule XX to impose additional regulations on the operation of student clinics throughout the State. Rule XX was thereafter amended on two occasions, and on March 22, 1999, the Louisiana Supreme Court published the latest version, which became. ~ effective April 15, 1999, and is the primary focus of this lawsuit. The Rule as finally amended provides in relevant part: Section 4. Standard for Determining Eligibility for Representation. Law School clinical program staff and student practitioners who appear in a representative capacity pursuant to this rule may represent any individual or family unit whose annual income does not exceed 200% of the federal poverty guidelines established by the Department of Health and Human Services. These guidelines need not be applied when the client is court-appointed or court-referred and the appointing or referring court has reviewed the economic condition of the client and has determined that the client is indigent. Section 5. Representation of Indigent Community Organizations. Any indigent community organization that wishes to obtain representation pursuant to this rule must certify in writing to the inability to pay for legal services. The written certification shall be subject to inspection by the Supreme Court of Louisiana. ~— 34a Appendix B Law school clinical program staff and student practitioners who appear in a representative Capacity pursuant to this rule may represent any indigent community organization provided at least 51% of the organization’s members are eligible for legal assistance pursuant to Section 4 of this rule. The indigent community organization shall also provide information to clinic staff which shows that the organization lacks, and has no practical means of obtaining, funds to retain private counsel. Section 7. The certification of a student by the law school dean. . . (c) May be terminated by this court at any time without notice or hearing and without any showing of cause. Section 10. Lawyer staffpersons of law school clinical programs and certified student practitioners shall adhere to the Rules of Professional Conduct, including the rules prohibiting solicitation of cases or clients. In addition, no student practitioner 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. 35a Appendix B Section 12. Nothing contained in this rule shall affect the right of any person who is not admitted to practice law to do anything that he/she might lawfully do prior to the adoption of this rule. La. Sup.Ct. R. XX. B. Procedural History 1. Plaintiffs’ Complaint On April 16, 1999 Plaintiffs instituted this suit pursuant to 42 U.S.C. § 1983, styled as “an action to preserve access to legal representation for individuals and community organizations in Louisiana who seek to enforce public laws and advance the public good, but who cannot afford to retain private counsel.” Pls.’ Compl., J 1. Plaintiffs comprise twenty-one separate parties, including ten community organizations allegedly in need of law clinic representation (“client-plaintiffs”), five law school professors who are licensed attorneys and act as clinic instructors (“professor- plaintiffs”), two student groups and three individual students claiming direct interests in clinical education programs (“student-plaintiffs”), and one private, individual donor of funds to TELC (“donor-plaintiff’). Plaintiffs name the Louisiana Supreme Court as sole Defendant and seek declaratory and injunctive relief, asking this Court to declare the amendments to Rule XX unconstitutional under both the United States Constitution and the Constitution of the State of Louisiana. | In their Complaint, Plaintiffs list eight specific bases for the relief sought by asserting that the Rule XX 36a Appendix B Amendments: 1) constitute impermissible viewpoint discrimination in violation of both the First Amendment of the United States Constitution and Article I, Section 7 of the Louisiana Constitution; 2) violate Equal Protection under the Fourteenth Amendment as well as Article I, Section 3 of the Louisiana Constitution by discriminating against Plaintiffs on the basis of their political views; 3) infringe Plaintiffs’ rights of freedom of speech, association, and to petition government for redress of grievances under the First Amendment and Louisiana Constitution, by placing restrictions on student solicitation of clients and cases (Rule XX, Section 10); 4) impinge on the academic freedom of professors and students in contravention of the First and Fourteenth Amendments and Article I, Sections 7, 9, and 23 of the Louisiana Constitution by imposing the newer, more restrictive income requirements potential clients must meet in order to qualify for representation (Rule XX, Sections 4 and 5); 5) violate the First and Fourteenth Amendments in addition to Article I, Sections 7, 9, and 22 of the Louisiana Constitution because the new income guidelines and allegedly intrusive verification procedures suppress Plaintiffs’ freedom of speech, freedom of association, and right to petition government for redress of grievances (Rule XX, Section 5); 6) are unconstitutionally vague and overbroad in that the financial disclosure and certification requirements contained in Rule XX, Section 5 provide insufficient guidance on how to comply, thereby violating the rights of the clients, students, and professors under the First and Fourteenth Amendments and Article I, Section 7 of the Louisiana Constitution; 7) violate the donor’s rights to freedom of speech and association to advance his beliefs by contributing funds, contrary to the First and Fourteenth 37a Appendix B Amendments and to Article I, Sections 7, 9, and 22 of the Louisiana Constitution; and 8) violate Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment as well as Article I, Section 2 of the Louisiana Constitution by virtue of the arbitrary and capricious manner in which the Rule XX Amendments were adopted, depriving them of fundamental rights without fair notice or any opportunity to be heard. Plaintiffs ask this Court to declare the Rule XX Amendments unconstitutional, and grant preliminary and permanent injunctive relief against their enforcement and against any disciplinary action by Defendant against any Plaintiff or other attorney based on the Amendments. Plaintiffs also seek an injunction directing Defendant to reinstate Rule XX as it existed prior to the 1998 and 1999 Amendments. Finally, Plaintiffs pray for costs and attorneys’ fees pursuant to 42 U.S.C. § 1988. 2. Defendant’s Motions The Louisiana Supreme Court filed two motions on May 26, 1999, asking this Court to dismiss Plaintiffs’ Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively for lack of standing, and to grant a stay of discovery pending the Court’s ruling on the Motion to Dismiss. At oral argument on July 21, 1999, this Court granted the Motion to Stay Discovery pending a ruling on the Motion to Dismiss, reserving to the parties their right to reurge any discovery matters after such ruling. 38a Appendix B In its Motion to Dismiss, Defendant takes the position that Plaintiffs state no colorable cause of action since there exists no statutory or constitutional right of a nonlawyer to represent individuals or organizations, nor is there any right of a litigant to legal representation in civil cases. Defendant views the Complaint as an attempt by the Plaintif [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2381%3A1. Public record. Not legal advice.