-1- REVISED - June 14, 2001 1

IN THE UNITED STATES COURT OF APPEALS 2

FOR THE FIFTH CIRCUIT 3

4

No. 99-30895 5

6

7

SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, 8

LOUISIANA CHAPTER; ST. JAMES CITIZENS 9

FOR JOBS & THE ENVIRONMENT; CALCASIEU LEAGUE 10

FOR ENVIRONMENTAL ACTION NOW; HOLY CROSS 11

NEIGHBORHOOD ASSOCIATION; FISHERMEN & 12

CONCERNED CITIZENS’ ASSOCIATION OF 13

PLAQUEMINES PARISH; ST. THOMAS RESIDENTS 14

COUNCIL; LOUISIANA ENVIRONMENTAL ACTION 15

NETWORK; LOUISIANA ASSOCIATION OF COMMUNITY 16

ORGANIZATIONS FOR REFORM NOW; NORTH BATON 17

ROUGE ENVIRONMENTAL ASSOCIATION; LOUISIANA 18

COMMUNITIES UNITED; ROBERT KUEHN; CHRISTOPHER 19

GOBERT; ELIZABETH E. TEEL; JANE JOHNSON; 20

WILLIAM P. QUIGLEY; TULANE ENVIRONMENTAL 21

LAW SOCIETY; TULANE UNIVERSITY GRADUATE 22

AND PROFESSIONAL STUDENT ASSOCIATION; 23

INGA HAAGENSON CAUSEY; CAROLYN DELIZIA; 24

DANA HANAMAN, 25

26

Plaintiffs-Appellants, 27

28

versus 29

30

SUPREME COURT OF THE STATE OF LOUISIANA, 31

32

Defendant-Appellee. 33

34

35

36

Appeal from the United States District Court for the 37

for the Eastern District of Louisiana 38

39

May 29, 2001 40* 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.

-2- Before GOODWIN, * GARWOOD and JONES, Circuit Judges. 41

42

GARWOOD, Circuit Judge: 43

On April 16, 1999, the Plaintiffs 1 filed a complaint under 42 44

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

District of Louisiana, alleging that Louisiana Supreme Court Rule 46

XX impermissibly suppresses Plainti ffs’ freedoms of speech and 47

association as protected under the First and Fourteenth Amendments. 48

The complaint s eeks injunctive and declaratory relief, costs and 49

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

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

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

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

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

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

affirm. 56

Facts and Proceedings Below 57-3-

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

which for the first time allowed the limited practic e of law by 59

students as part of supervised clinical education programs in 60

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

certain circumstances to appear in court or before administrative 62

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

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

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

indigent community organizations. S ee Louisiana Supreme Court Rule 66

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

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

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

circumstances under which unlicensed law students may engage in the 70

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

Over the years, several Louisiana law school clinics, 72

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

legal advice and representation to numerous individuals and various 74

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

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

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

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

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

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

Parish. The group was dedicated to resisting the construction of 813 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 (5 th Cir.

1999).

-4- the Shintech plant in their community and to raising public 82

awareness of community environmental and health concerns related to 83

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

variety of w ays: at hearings before the Louisiana Department of 85

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

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

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

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

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

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

from political and business leaders in Louisiana. The complaint 92

alleges that various Louisiana business and political leaders, 93

including Governor Foster, tried to convince Tulane University to 94

c urtail the endeavors of TELC. Tulane University proved 95

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

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

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

that these political and business interes ts urged the LSC to 99

prevent TELC and other clin ics from continuing to aid community 100

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

Plaintiffs allege several specific incidents that they claim 102-5-

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

including phone calls from Governor Foster to the President of 104

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

the New Orleans Business Council requesting a ssistance in 106

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

by Governor Fo ster, a letter from a chamber of commerce 108

organization urging the LSC to eliminate the TELC becau se the 109

faculty and students inv olved were “in direct conflict with 110

business positions,” and letters from various business 111

organizations, including the Business Council, the Louisiana 112

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

Louisiana, urging the LSC to eliminate TELC. 114

Allegedly in response to the c oncerns of the Governor and 115

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

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

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

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

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

reveal any inappropriate or unethical behavior by any person 121

associated with any Louisiana law school clinic. 122

The LSC did in fact alter its rule concerning student 123

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

amendments that established the current form of Louisiana Supreme 125

Court Rule XX. The amendments became effective April 15, 1999, and 1264 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 inperson contact, or contact by mail, tel ephone 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

-6- by their terms “shall not impact or apply to any cases, and/or the 127

representation of any clients, in which the representation 128

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

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

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

requirements were tightened. The new rule allows representation of 132

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

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

t hat any indigent community organization that wishes to obtai n 135

representation from a clinic must certify in writing its inability 136

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

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

second major change to Rule XX involves the community outreach 139

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

student practitioners are prohibited from representing in the role 141

of attorneys an otherwise qualified individual or organization if 142

any person associated with the clinic initiated contact with that 143

individual or organization for purposes of that representation. 4 144solicitation of legal clients generally, the

ethical prohibitions against attorney

solicitation, and the Court's view that law

students should not be encouraged to engage in the

solicitation of cases, Section 10, as amended,

prohibits a student practitioner from representing

a client who has been the subject of targeted

solicitation by any law clinic representative.”

(emphasis added).

At oral argument, the Plaintiffs asserted that the current version of

the rule prevents clinics from engaging in any kind of advertising or

outreach. Our interpretation of this rule, however, is that the clinics

must refrain from all targeted solicitation, and that initiating inperson 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.

-7- In respon se to the LSC’s new Rule XX, the Plaintiffs filed this 145

lawsuit on April 16, 1999. 146

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

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

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

establish the deprivation of any co gnizable federal right. The 150

court found that the indigence requirements did not implicate any 151

f reedom of association or speech, and that the limitation of 152

clini cal services to the poor was rationally related to a 153

legitimate government purpose. Southern Christian Leadership 154

Conference v. Supreme Court

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

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

practice, and held that in this context, the solicitation 157-8-

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

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

they are precariously perched when balanced against the imperatives 160

o f protecting the public and monitoring professional ethi cs. 161

Particularly where student solicitation of potential cl ients is 162

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

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

the solicitation restrictions were justified because the 165

restr ictions were rationally related to the state’s legitimate 166

interest in p r otecting the public and monitoring professional 167

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

viewpoint discrimination, holding that the political motivations 169

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

a constitutional violation. I d. at 513. Accordingly, the district 171

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

appeal followed. 173

Discussion 174

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

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

School Dist.

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

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

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

Brown v. Nationsbank Corp

. , 188 F.3d 579, 585-86 (5 t h Cir. 1999). 180

Motions “to dismiss for failure to state a claim [are] 'viewed with 181-9-

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

v. Charles-Thomas, Inc.

, 849 F.2d 1568, 1572 (5 t h Cir. 1988) 183

(quoting Sosa v. Coleman

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

Rule 12(b)(6) dismissal will n ot be affirmed “unless it appears 185

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

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

Gibson

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

or legal conclusions masquerading as factual conclusions will not 189

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

Pilots Ass’n

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

a 12(b)(6) motion in a section 19 83 suit, the focus should be 192

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

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

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

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

If there is no deprivation of any protected r ight the claim is 197

properly dismissed. Id. 198

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

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

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

First Amendment freedoms of the individuals and organizations that 202

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

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

Rule XX: the new, more specific indigence requirements as well as 205-10-

the restriction on student representation in the role of an 206

attorney of any group or individual whose repreentation has been 207

solicited by any person associated with the clinic. 208

The Plaintiffs’ second genera l claim is that regardless of 209

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

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

clinics’ and their clients’ political speech and advocacy i n the 212

Shintech matter, and is therefore an impermissi ble form of 213

viewpoint discrimination. The Plaintiffs’ claim that the LSC 214

amended Rule XX in direct respons e to pressure from business 215

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

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

the LSC in enacting Rule XX. 218

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

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

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

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

that the indigence requirements are not unlike those of several 223

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

disqualifies individuals from clinic representation is 225

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

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

client organi zations are entitled to p ro bono representation in 228

civil cases there has been no actionable deprivation of any 229-11-

protected right. 230

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

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

represent others in litigation, that the litigation activities the 233

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

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

responds to the viewpoint discrimination claims in much the same 236

w ay, arguing that Rule XX does not affect any party’s righ ts of 237

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

may have speech and associational freedoms that protect pro bono 239

representation of clients for political r easons, lay persons and 240

law students have n o such rights. Since Rule XX does not affect 241

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

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

associational interests. 244

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

Plaintiffs have standing; whether Plaintiff s have stated a claim 246

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

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

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

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

LSC’s promulgation of the rule constitutes actionable viewpoint 251

discrimination in this context. 252

2535 Another individual party plaintiff below (Shearer) did not join

in this appeal; consequently, we disregard him.

-12- Standing 254

All of the Plaintiffs i n this case fall into one of four 255

categories. The first group is comprised of community 256

organizations and individuals that have either been clients of the 257

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

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

consists of law professors and clinical law instructors who oversee 260

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

consists of three Tul ane University law students, two third year 262

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

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

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

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

student organizations, the Tulane Environmental Law Society (an 267

organ ization of students that includes some of the students 268

enrolled in the Tulane Environ mental Law Clinic) and the Tulane 269

Graduate and Professional Student Ass ociation. 5 Neither Tulane 270

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

university or law clinic. 272

To s atisfy the standing requirement, a party must establish 273

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

injury in fact. An “injury in fact” is an invasion of a legally 275-13-

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

and (b) actual or imminent and not conjectural or hy pothetical. 277

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

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

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

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

action of a third party. Id. T hird, the injury mus t be 282

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

that a favorable decision will redress the plaintiff’s injury. I d

. 284

The party invoking federal jurisdiction bears the burden of 285

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

factual allegations of injury resulting from the defendant’s 287

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

general factual allegations embrace those specific facts that are 289

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

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

According to the complaint, Rule XX directly regulates the 292

operations of law school clinics in Louisiana and significantly 293

alters the ways i n which those clinics can permissibly function. 294

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

the client organ izations will hereafter be unable to obtain 296

representation from the clinics. Given the expansive and 297

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

suit, we find that Rule XX has enough of an impact on at least some 299-14-

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

some of the Plaintiffs have standing to b ring each type of claim 301

c urrently before the court. Accordingly, we next address the 302

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

claim that the indigence and solicitati on restrictions, on their 304

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

Amendment. 306

Indigence Requirements 307

Rule XX now requires that clinical st u dent practitioners 308

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

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

current federal poverty guidelines as established by the Department 311

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

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

current federal pover ty standards the clinics are permitted to 314

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

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

less than $33,340. I d

. Contrary to the Plaintiffs’ assertions, 317

the rule does not require individuals to provide detailed financial 318

information to obtain representation–the rule simply states that 319

the clinics may only represent individuals who fall within the 320

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

rule subjects their clients to invasive discovery intended to 322

obtain embarrassi ng financial information. However, the LSC has 323-15-

always required that student practitioners represent only 324

“indigent” community organizations. S ee Lou isiana Supreme Court 325

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

discovery requests will dramatica lly increase is clearly based 327

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

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

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

other than to limit clinical representation to clients who are 331

poor. 332

The indigence requirements alone implicate no speech 333

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

Classifications based on wealth alone are not s ubject to strict 335

scrutiny. See San Antonio Independent School District v. 336

Rodriguez

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

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

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

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

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

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

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

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

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

Solicitation Restrictions 346

The Plaintiffs argue that section 10 of Louisiana Supreme Court 347-16-

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

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

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

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

speech. 352

The First Amendment prohibits the government from enacting 353

solicitation restrictions that prevent attorneys fr om offering their 354

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

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

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

and referring those individuals to lawyers. And, in I n re Primus

, 98 358

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

constitutionally subjected to discipline for informing members of the 360

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

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

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

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

be infringed without a compelling state interest. 365

A careful examination of those decision s reveals, however, 366

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

example, in both Button and Primus

, the solicitous speech was itself 368

prohibited. In B utton

, under Virginia's statute solicitation was a 369

misdemeanor, and the penalties for solicitation included imprisonment 370

for up to six months. B utton

, 83 S.Ct. at 334 n.7 (citing Va. Code § 371-17-

54.82 (19 58)). Similarly, Edna Primus's letter soliciting a client on 372

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

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

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

in such speech subjected the speaker to crimi nal or disciplinary 376

sanctions. 377

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

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

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

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

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

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

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

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

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

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

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

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

indirectly discourages speech—by refusing the educational experience of 390

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

practitioners in clinics whose members or employe es engaged in 392

solicitation of that matter. 393

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

educational experience is far from extreme. The students are not 3956 Indeed , the students are barred only from serving in an

attorney’s representative capacity by Rule XX, and could perform a wide

variety of legal related work or research, so long as it was reviewed

and any formal documents (such as pleadings, motions, agreements or the

like) were actually submitted by a licensed supervising attorney.

Nothing in Rule XX (or its challenged amendments) in any way

broadens the categories of conduct which constitute the practice of law

so as to require one engaging in same to either be a licensed attorney

or to come under the exemption for student practitioners provided by

Rule XX since 1971.

7 And, of course, the clinic's supervising attorneys could

continue to represent any client they wish, including clients who had

been solicited.

8 The Court in P rimus 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 re strictions were narrowly tailored and

did not impermissibly abridge associational freedoms. Primus , 98 S.Ct.

at 1908.

-18- prohibited from or restricted in working on clinic solicited cases as 396

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

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

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

representation is available from the clinic s. And, targeted 400

solicitation only implicates the students’ representation as attorneys 401

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

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

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

invalidated by the Supreme Court in Button and Primus

. 8 405

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

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

of the bar. The LSC has a heightened interest in overseeing the 4089 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. Ros borough , 94 So. 858 (1922)),

writ denied , 592 So.2d 1332 (1992).

10 On its face, section 10 of Rule XX is unquestionably viewpoint

neutral. We address below the Plaintiffs' claim that the rule was,

nevertheless, motivated by a desire to suppress a particular viewpoint.

-19- practice of law by non-attorneys in Louisiana. Indeed, the LSC need not 409

have ever allowed–and did not at all until relatively recently–non410

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

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

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

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

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

to grant to Louisiana law students. 416

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

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

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

attorney can otherwise do–to representing as attorneys nonsolicited 420

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

is significantly different from t he criminal or quasi-criminal 422

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

Primus

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

section 10 of Rule XX to rational basis review. The stated rationale 425-20-

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

of legal clients generally, the ethical prohibitions against attorney 427

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

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

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

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

nature of the solicitation provis ion, combined with the unique status 432

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

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

By allowing unlicensed law students at clinics to practice law 435

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

representation to poor Louisianians and providing educational 437

opportunities to Louisiana law students. S ee Louis iana Supreme Court 438

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

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

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

(2001), the Supreme Court inv a lidated a congressional funding 442

restriction that prohibited Legal Services Corporation attorneys from 443

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

federal welfare system. The Court held that the restrictions 445

unconstitutionally regulated private expression in an arena in which 446

Congress had funded Legal Services Corporation attorneys to represent 447

indigent litigants. V elazquez

, 121 S.Ct. at 1 051-52. A major concern 448

of the Court was that the restrictions would do more than simply prevent 449-21-

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

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

preventing them from making certain arguments in particular cases: 452

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

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

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

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

truncate presentation to the courts, the enactment under r eview 457

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

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

a Legal Services Corporation lawyer could withdraw from a representation 460

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

problems the rule caused. Id . at 1051. 462

In Velazquez

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

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

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

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

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

the scope of the litigation it funds to exclu de certain vital theories 468

and idea s.” V elazquez

, 121 S.Ct. at 1052. In contrast to the 469

regulations in V e lazquez , Rule XX does not limit speech by the clinics' 470

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

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

clinics are allowed to represent clients so solicited, with one 473-22-

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

, 474

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

Velaz quez , Rule XX imposes no restrictions on the kind of 476

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

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

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

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

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

this case. 482

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

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

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

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

criminal sanctions and disciplinary penalties involved in Button and 487

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

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

Court in V elazquez are implicat ed by Rule XX. The First Amendment does 490

not prohibit the LSC from imposin g this viewpoint neutral limit on the 491

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

Louisiana courts. 493

Viewpoint Discrimination and Retaliation 494

Our holding that the s olicitation requirements are facially 495

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

the enactment of Rule XX constitutes an unconstitutional attempt by the 497-23-

Court to suppress political speech it has deemed undesirable. 498

Specifically, the Plaintiffs allege that the Governor and various 499

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

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

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

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

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

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

rule is facially viewpoint neutral and is not otherwise constitutionally 506

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

alleged motivation has on the constitutionality of Rule XX. 508

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

is some support for t he Plaintiffs' contentions that the motivation of 510

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

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

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

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

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

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

See, e.g.

, Edwards v. Aguillard

, 107 S.Ct. 2573 (1987) (striking down 517

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

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

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

by a junior college professor whose contract had not been renewed, 521-24-

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

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

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

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

executive order which limited participation in a charity drive among 526

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

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

excluded legal defense and political advocacy groups. The district 529

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

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

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

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

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

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

however: 536

“While we accept the validity and reasonableness of the 537

justifications offered by petitioner for excluding advocacy 538

groups from the CFC, those justifications cannot save an 539

exclusion that is in fact based on the desire to suppress a 540

particular point of view.” 541

. . . . 542

543

“. . . the purported concern to avoid controversy excited by 544

particular groups may conceal a bias against the viewpoint 545

advanced by the excluded speakers.

. . .Organizations that 546

do not provide direct health and welfare services, such as 547

the World Wildlife Fund, the Wilderness Society, and the 548

United States Olympic Committee, have been permitted to 549

participate in the CFC. . . .the issue whether the Government 550

excluded respondents because it disagreed with their 551

viewpoints was neither decided below nor fully briefed before 552

this Court. We decline to decide in the first instance 553

whether the exclusion of respondents was impermissibly 55411 Nor do Plaintiffs argue that Rule XX creates any kind of forum

for speech.

-25- motivated by a desire to suppress a particular point of view. 555

Respondents are free to pursue this contention on remand.” 556

Id . at 3454. 557

558

This language in Cornelius provides the Plaintiffs with some 559

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

Cornelius involved a rule which actually prevented certain groups from 561

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

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

their identity and the content of their speech. I d

. at 3451. Those 564

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

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

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

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

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

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

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

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

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

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

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

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

case requires us to examine the motivation underlying every governmental 577

decision for viewpoint neutrality. 578-26-

Additionally, the Plaintiffs' assertion that Cornelius stands for 579

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

any state action into an unconstitutional suppression of speech or 581

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

, 111 582

S.Ct. 1759 (1991). In Rust

, the Supreme Court upheld Department of 583

Hea lth and Human Services regulations that attached several conditions 584

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

regulations were requirements that Title X projects refrain from 586

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

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

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

Rust

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

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

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

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

upheld in Rust explicitly prohibited the expression of a particular 594

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

l imited the holding of Rust to occasions in which the government itself 596

is the speaker, or to “instances, like Rust

, in which the government 597

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

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

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

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

is not itself a speaker–there is no government message that the clinics 602-27-

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

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

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

allowed any unlicensed student to serve in an attorney representative 606

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

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

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

supporting those clinics by its allowance of unlicensed students' 610

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

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

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

but we think that Rust

, while not controlling, informs our current 614

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

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

program participants. See Velazquez

, 121 S.Ct. at 1049-50; Rust

, 111 617

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

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

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

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

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

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

The Plaintiffs have alleged facts that may arguably support their 624

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

interests who bore the TELC significant animus. But the Plaintiffs' 626-28-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rule XX into an unconstitutional state action. 644

The fundamental purpose behind the First Amendment is to promote 645

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

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

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

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

restrictions on clinic activities, and, according to the complaint, the 65012 Nor does Rule XX impermissibly interfere with the content of

the private speech promoted as in Velazquez

.

-29- solicitation restrictions and the new, more strict indigence 651

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

representation for some of the P laintiffs. Some of the client 653

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

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

clinics themselves will either be forced to change their educational 656

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

minimal impact on the clinics and the c lient organizations is 658

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

. 659

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

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

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

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

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

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

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

across-the-board

, wholly prospective and viewpoint neutral general rule

. 667

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

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

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

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

until its motives are shown to be pure. The LSC need not have ever 67213 At oral argument, the Plaintiffs asserted that even a complete

refusal to allow unlicensed students to practice law in Louisiana could

be considered a violation of the First Amendment if the change was

motivated by a desire to suppress political speech. We do not agree

that the First Amendment requires the LSC to continue, in perpetuity,

an optional program that allegedly benefits a particular political

viewpoint once that program has begun.

-30- allowed unlicensed students to practice law in Louisiana, and indeed did 673

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

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

context, is irrelevant. As the Supreme Court stated in R ust

, “[t]his 676

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

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

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

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

constitute impermissible viewpoint discrimination in violation of the 681

First Amendment. 682

Conclusion 683

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

dismissing the action is 685

AFFIRMED.