The Volokh Conspiracy - Interesting First Amendment Case:

Martin Wishnatsky had publicly criticized the University of North Dakota School of Law's law clinic, chiefly because it had helped a client challenge the display of a Ten Commandments monument on city property. Wishnatsky then asked the clinic for help challenging the courthouse's display of the goddess of Justice (Themis) on city property. The clinic's director rejected Wishnatsky's request, partly because Wishnatsky's "persistent and antagonistic actions against the [law clinic] and faculty involved would adversely affect our ability to establish an effective client-attorney relationship with you and would consequently impair our ability to provide legal representation."

Wishnatsky then sued the clinic, claimed that it improperly discriminated against him based on his viewpoint (not the viewpoint on which his lawsuit rests, but the viewpoint that he had publicly expressed outside about the clinic before). The clinic responded that it was entitled to discriminate based on viewpoint (though it argued that as a factual matter this wasn't the deciding factor); it could hire whomever it pleased, presumably subject to the rules barring race discrimination, sex discrimination, and the like.

Not so, U.S. Court of Appeals for the Eighth Circuit just held. If Wishnatsky's past critical speech was the deciding factor in the clinic's decision -- which is a matter that would have to be considered at trial -- the clinic's refusal to represent him would be presumptively unconstitutional viewpoint discrimination. "Taken to its logical conclusion, the Clinic's argument means that a public law school could announce that its clinical program will accept as clients only persons who belong to one political party or espouse particular views on controversial issues of the day. We reject that proposition as inconsistent with the First Amendment."

I'm not sure whether this is the right result. True, the government may not discriminate based on viewpoint in "designated public forum" programs that are open to all applicants who meet objective criteria (e.g., "all student publications are entitled to reimbursement for their printing expenses) and that are aimed at promoting a diversity of views. But I'm not sure that legal clinics, which necessarily use discretionary criteria in selecting clients, which are chiefly aimed at educating students, not promoting a diversity of views, and which involve personal services rendered in a fairly close working relationship fall in the same category. On the other hand, Legal Services Corp. v. Velazquez seems to suggest that legal aid programs are indeed a sort of designated public forum; and I sympathize with the court's view that the state ought not deny potential litigants benefits because they belong to disfavored groups or express disfavored opinions.

Finally, note that none of this suggests that Wishnatsky's lawsuit about Themis would win, or that the clinic had an obligation to represent him. The clinic, I'm pretty sure, would have had no trouble if it had rejected him because it thought his case was weak, or even just not interesting to its students or faculty. The claim is that it couldn't reject his case because of his past criticism of the clinic, not that it couldn't reject his case, period.

	[Eugene Volokh, January 5, 2006 at 6:06pm] Trackbacks Interesting First Amendment Case: Martin Wishnatsky had publicly criticized the University of North Dakota School of Law's law clinic, chiefly because it had helped a client challenge the display of a Ten Commandments monument on city property. Wishnatsky then asked the clinic for help challenging the courthouse's display of the goddess of Justice (Themis) on city property. The clinic's director rejected Wishnatsky's request, partly because Wishnatsky's "persistent and antagonistic actions against the [law clinic] and faculty involved would adversely affect our ability to establish an effective client-attorney relationship with you and would consequently impair our ability to provide legal representation." Wishnatsky then sued the clinic, claimed that it improperly discriminated against him based on his viewpoint (not the viewpoint on which his lawsuit rests, but the viewpoint that he had publicly expressed outside about the clinic before). The clinic responded that it was entitled to discriminate based on viewpoint (though it argued that as a factual matter this wasn't the deciding factor); it could hire whomever it pleased, presumably subject to the rules barring race discrimination, sex discrimination, and the like. Not so, U.S. Court of Appeals for the Eighth Circuit just held. If Wishnatsky's past critical speech was the deciding factor in the clinic's decision -- which is a matter that would have to be considered at trial -- the clinic's refusal to represent him would be presumptively unconstitutional viewpoint discrimination. "Taken to its logical conclusion, the Clinic's argument means that a public law school could announce that its clinical program will accept as clients only persons who belong to one political party or espouse particular views on controversial issues of the day. We reject that proposition as inconsistent with the First Amendment." I'm not sure whether this is the right result. True, the government may not discriminate based on viewpoint in "designated public forum" programs that are open to all applicants who meet objective criteria (e.g., "all student publications are entitled to reimbursement for their printing expenses) and that are aimed at promoting a diversity of views. But I'm not sure that legal clinics, which necessarily use discretionary criteria in selecting clients, which are chiefly aimed at educating students, not promoting a diversity of views, and which involve personal services rendered in a fairly close working relationship fall in the same category. On the other hand, Legal Services Corp. v. Velazquez seems to suggest that legal aid programs are indeed a sort of designated public forum; and I sympathize with the court's view that the state ought not deny potential litigants benefits because they belong to disfavored groups or express disfavored opinions. Finally, note that none of this suggests that Wishnatsky's lawsuit about Themis would win, or that the clinic had an obligation to represent him. The clinic, I'm pretty sure, would have had no trouble if it had rejected him because it thought his case was weak, or even just not interesting to its students or faculty. The claim is that it couldn't reject his case because of his past criticism of the clinic, not that it couldn't reject his case, period.