Law school clinics and the First Amendment.

• Author: Entin, Jonathan L.
• Position: Government Speech: The Government's Ability to Compel and Restrict Speech

Professor Babich has provided us with a troubling account of external pressures brought to bear on a highly regarded clinic at Tulane Law School. (1) Professor Joy has put the Tulane story into broader context with accounts of other clinics that have encountered similar criticism and efforts to confine their activities. (2) In this brief comment, I want to raise questions about the extent to which law school clinics could successfully assert First Amendment defenses against outside efforts to restrict their activities in the event that such pressure were to result in litigation.

The discussion proceeds in three stages. First, I will offer other examples in which law reform has generated political backlash. The frequency of the phenomenon should come as no great surprise. Perhaps the haves do not always come out ahead, (3) but just as the race is not always to the swift or the battle to the strong, (4) we should expect the haves to defend their position vigorously. (5)

Second, I will address some First Amendment issues that bear on this subject. Specifically, I will examine the implications of Garcetti v. Ceballos, (6) a 2006 ruling that takes a restrictive view of the speech rights of public employees and therefore might have troubling implications for clinics at public law schools. I will also examine Legal Services Corp. v. Velazquez, (7) a pre-Garcetti case that points in the other direction by treating the activities of government-funded lawyers as private speech rather than government speech.

Third, I will pick up on a hint in Garcetti that academic freedom, which has important First Amendment aspects, might bear on the extent to which law school clinics enjoy legal protection against some of the egregious assaults that Professors Babich and Joy recount in their articles. In doing so, however, I will point to some ambiguities in the law of academic freedom and in the nature of law schools that might limit the extent of protection that academic freedom provides to clinics.

1. LAW REFORMERS AND OTHER TARGETS OF BACKLASH

   During my first week at Northwestern University School of Law, one of my professors was installed in an endowed chair. In his remarks at the installation ceremony, Jon Waltz did not address anything related to the law of evidence or trial procedure, in which he had gained prominence, (8) or health law, in which he had done pioneering scholarship. (9) Instead, he talked about his peripheral involvement in the Chicago 7 case, which grew out of the violence surrounding the 1968 Democratic National Convention. (10) Waltz consulted with defense lawyers William Kunstler and Leonard Weinglass about some evidentiary issues in the case. (11) He also testified as a defense witness at the retrial of the defendants and their lawyers on contempt charges after their original convictions were overturned on appeal. (12)

   Professor Waltz focused his remarks at the chairing ceremony on his connection to the original trial. That chaotic proceeding was presided over by Judge Julius Hoffman, a prominent graduate of the law school who had many influential friends and supporters. (13) Indeed, Hoffman was such a prominent alumnus that the law school had named a classroom for him--a room in which Waltz refused to teach. Judge Hoffman's supporters were outraged that a faculty member, let alone one as prominent as Professor Waltz, would have anything to do with the defense in the case. According to Waltz, the critics approached the dean of the law school and the president of the university, demanding that he be fired and threatening to withhold future financial support. Pausing briefly for effect, he continued: "To their everlasting credit, the dean and the president told those people, in so many words, to go jump in Lake Michigan." He spent the rest of his career at Northwestern.

   In a similar vein, Edna Smith Primus, the protagonist in In re Primus, (14) had to go to the Supreme Court to overturn disciplinary sanctions imposed in connection with a challenge to a local sterilization policy. Primus, an officer of and cooperating attorney with the South Carolina affiliate of the American Civil Liberties Union, addressed a meeting of low-income women who had been sterilized or threatened with sterilization as a condition for continued receipt of Medicaid benefits. (15) She advised the women of their legal rights and thereafter wrote to one of those women saying that the ACLU was prepared to represent her on a pro bono basis should she want to sue. (16) That woman decided not to accept the offer. (17) The state bar imposed a private reprimand for the letter, which the authorities regarded as unethical solicitation of a client. (18)

   The Supreme Court set aside the sanction. The Court emphasized that Primus had not solicited a prospective client in person and that her letter did not involve any prospect of "pecuniary gain." (19) Rather, she was promoting her "personal political beliefs" and "the civil-liberties objectives of the ACLU" by advising the woman of her legal rights. (20) The letter "comes within the generous zone of First Amendment protection reserved for associational freedoms." (21) The record contained no evidence of undue influence, overreaching, misrepresentation, or invasion of privacy that might have justified professional discipline, (22) nor did it present any threat of frivolous claims that provides the basis for the barratry doctrine. (23)

   Both of these situations involved one-time episodes. More analogous to some of the challenges that law school clinics face is the effort of several states to shut down the NAACP's litigation efforts at the height of the civil rights movement. The leading example involved Virginia's attempt to outlaw the association's desegregation lawsuits as a prohibited form of barratry, but several other states also pursued the same goal. (24) The theory was that the NAACP controlled the litigation and induced unsuspecting plaintiffs to lend their names to cases which they otherwise had no interest in pursuing. (25) The state legislature therefore amended its laws against soliciting legal business to include agents of an organization that hired a lawyer in connection with any case to which the group was not a party and in which it had no pecuniary interest. (26)

   The Supreme Court ultimately thwarted this stratagem, but not before the effort diverted considerable time and resources that the organization might have devoted to even more aggressive legal assaults on racism. (27) In NAACP v. Button, (28) the Court held that the amended Virginia barratry statute violated the First Amendment. The NAACP's legal activities were a form of political expression and association that enjoyed constitutional protection. (29) Although the state had a legitimate interest in regulating the ethics and integrity of the legal profession, that interest did not justify the infringement on First Amendment freedoms that the regulation embodied. (30) The NAACP's activities did not pose a danger of conflict of interest or financial gain by lawyers at the expense of their clients, so the state could not forbid the targeted arrangements. (31)

   A final example of external pressure involves the legal services program. Originally part of the Office of Economic Opportunity, the federal antipoverty agency, the legal services program provides lawyers for low-income persons around the nation. (32) Because legal services lawyers sometimes challenge powerful private interests as well as local officials and policies, the program has generated a fair amount of controversy. In its early years, several governors opposed the program. (33) The most prominent example involved Governor Ronald Reagan's 1970 veto of a grant to California Rural Legal Assistance, a high-profile agency that had successfully litigated test cases on behalf of agricultural workers, welfare recipients, and Medicaid patients. (34) After a special commission made up of three state supreme court justices from elsewhere in the country exonerated CRLA of all charges of improper conduct asserted by Reagan's antipoverty director, OEO devised a compromise under which CRLA received continued funding while the state got a planning grant for another experimental program and the governor withdrew his veto. (35)

   Even after the 1974 passage of legislation establishing the Legal Service Corporation as an independent, nonprofit entity, (36) the program has remained controversial. In addition to the limitations at issue in Velazquez, (37) LSC-funded programs and attorneys face many statutory restrictions, including bans on political activity, lobbying, fee-generating cases, and litigation relating to school desegregation and most abortions; there also are stringent limitations on class actions. (38) Some of these restrictions have always applied to the program, while others were adopted after the Reagan administration's unsuccessful campaign to abolish the program (39) or in the wake of the Republican victory in the 1994 congressional elections. (40)

   Controversy over the legal services program, both under OEO and later under LSC, was quite predictable. To the extent that the program subsidizes lawsuits that challenge public policies, elected officials can be expected to react with skepticism if not outright hostility. A similar phenomenon occurred in connection with the community action program, which was the centerpiece of the War on Poverty overseen by OEO. Mayors and other officials around the nation sought either to eliminate or to control local community action agencies in order to minimize the political threat that those agencies posed. (41) As the sociologist Lewis Coser put it: "I know of no government in history which has deliberately financed its own opposition." (42) This observation does not necessarily make the criticisms of legal service legitimate, but it helps to explain their existence.

   Although the situations described in this section...