 1                   REVISED - June 14, 2001

 2            IN THE UNITED STATES COURT OF APPEALS

 3                    FOR THE FIFTH CIRCUIT

 4

 5                        No. 99-30895
 6
 7
 8   SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE,
 9   LOUISIANA CHAPTER; ST. JAMES CITIZENS
10   FOR JOBS & THE ENVIRONMENT; CALCASIEU LEAGUE
11   FOR ENVIRONMENTAL ACTION NOW; HOLY CROSS
12   NEIGHBORHOOD ASSOCIATION; FISHERMEN &
13   CONCERNED CITIZENS’ ASSOCIATION OF
14   PLAQUEMINES PARISH; ST. THOMAS RESIDENTS
15   COUNCIL; LOUISIANA ENVIRONMENTAL ACTION
16   NETWORK; LOUISIANA ASSOCIATION OF COMMUNITY
17   ORGANIZATIONS FOR REFORM NOW; NORTH BATON
18   ROUGE ENVIRONMENTAL ASSOCIATION; LOUISIANA
19   COMMUNITIES UNITED; ROBERT KUEHN; CHRISTOPHER
20   GOBERT; ELIZABETH E. TEEL; JANE JOHNSON;
21   WILLIAM P. QUIGLEY; TULANE ENVIRONMENTAL
22   LAW SOCIETY; TULANE UNIVERSITY GRADUATE
23   AND PROFESSIONAL STUDENT ASSOCIATION;
24   INGA HAAGENSON CAUSEY; CAROLYN DELIZIA;
25   DANA HANAMAN,
26
27                                       Plaintiffs-Appellants,
28
29        versus
30
31   SUPREME COURT OF THE STATE OF LOUISIANA,
32
33                                       Defendant-Appellee.
34
35
36
37    Appeal from the United States District Court for the
38            for the Eastern District of Louisiana
39
40                        May 29, 2001




                               -1-
41   Before GOODWIN,* GARWOOD and JONES, Circuit Judges.

42

43   GARWOOD, Circuit Judge:

44        On April 16, 1999, the Plaintiffs1 filed a complaint under 42

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

46   District of Louisiana, alleging that Louisiana Supreme Court Rule

47   XX impermissibly suppresses Plaintiffs’ freedoms of speech and

48   association as protected under the First and Fourteenth Amendments.

49   The complaint seeks injunctive and declaratory relief, costs and

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

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

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

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

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

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

56   affirm.

57                        Facts and Proceedings Below


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

59   which for the first time allowed the limited practice of law by

60   students as part of supervised clinical education programs in

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

62   certain circumstances to appear in court or before administrative

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

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

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

66   indigent community organizations. See Louisiana Supreme Court Rule

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

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

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

70   circumstances under which unlicensed law students may engage in the

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

72        Over    the   years,   several     Louisiana   law   school   clinics,

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

74   legal advice and representation to numerous individuals and various

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

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

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

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

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

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

81   Parish.     The group was dedicated to resisting the construction of



                                           -3-
82    the Shintech    plant    in   their   community   and   to   raising    public

83    awareness of community environmental and health concerns related to

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

85    variety of ways: at hearings before the Louisiana Department of

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

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

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

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

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

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

92    from political and business leaders in Louisiana.             The complaint

93    alleges that various Louisiana business and political leaders,

94    including Governor Foster, tried to convince Tulane University to

95    curtail   the   endeavors     of    TELC.     Tulane    University      proved

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

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

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

99    that these political and business interests urged the LSC to

100   prevent TELC and other clinics from continuing to aid community

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

102   Plaintiffs   allege     several    specific   incidents   that   they   claim



           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 (5th Cir.
      1999).

                                            -4-
103   document the political pressure exerted on both Tulane and the LSC,

104   including phone calls from Governor Foster to the President of

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

106   the    New    Orleans      Business       Council         requesting      assistance     in

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

108   by    Governor      Foster,     a    letter        from    a    chamber     of   commerce

109   organization urging the LSC to eliminate the TELC because the

110   faculty      and    students    involved       were       “in   direct    conflict     with

111   business       positions,”          and     letters        from    various       business

112   organizations,        including       the    Business       Council,      the    Louisiana

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

114   Louisiana, urging the LSC to eliminate TELC.

115         Allegedly in response to the concerns of the Governor and

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

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

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

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

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

121   reveal any inappropriate or unethical behavior by any person

122   associated with any Louisiana law school clinic.

123         The     LSC    did   in   fact      alter     its    rule   concerning      student

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

125   amendments that established the current form of Louisiana Supreme

126   Court Rule XX. The amendments became effective April 15, 1999, and



                                                   -5-
127   by their terms “shall not impact or apply to any cases, and/or the

128   representation   of   any   clients,    in    which   the   representation

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

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

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

132   requirements were tightened. The new rule allows representation of

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

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

135   that any indigent community organization that wishes to obtain

136   representation from a clinic must certify in writing its inability

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

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

139   second major change to Rule XX involves the community outreach

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

141   student practitioners are prohibited from representing in the role

142   of attorneys an otherwise qualified individual or organization if

143   any person associated with the clinic initiated contact with that

144   individual or organization for purposes of that representation.4

           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

                                        -6-
145   In response to the LSC’s new Rule XX, the Plaintiffs filed this

146   lawsuit on April 16, 1999.

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

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

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

150   establish the deprivation of any cognizable federal right.                          The

151   court found that the indigence requirements did not implicate any

152   freedom of association or speech, and that the limitation of

153   clinical    services       to    the   poor       was    rationally      related   to   a

154   legitimate      government       purpose.         Southern      Christian   Leadership

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

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

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



                 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 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.

                                                  -7-
158   restrictions of Rule XX did not violate the First Amendment.                 The

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

160   they are precariously perched when balanced against the imperatives

161   of    protecting    the   public   and    monitoring     professional   ethics.

162   Particularly where student solicitation of potential clients is

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

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

165   the    solicitation       restrictions         were   justified   because    the

166   restrictions were rationally related to the state’s legitimate

167   interest in protecting the public and monitoring professional

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

169   viewpoint discrimination,          holding that the political motivations

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

171   a constitutional violation. Id. at 513. Accordingly, the district

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

173   appeal followed.

174                                      Discussion

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

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

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

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

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

180   Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir. 1999).

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


                                               -8-
182   disfavor, and [are] rarely granted.'”     Tanglewood East Homeowners

183   v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988)

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

185   Rule 12(b)(6) dismissal will not be affirmed “unless it appears

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

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

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

189   or legal conclusions masquerading as factual conclusions will not

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

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

192   a 12(b)(6) motion in a section 1983 suit, the focus should be

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

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

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

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

197   If there is no deprivation of any protected right the claim is

198   properly dismissed.   Id.

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

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

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

202   First Amendment freedoms of the individuals and organizations that

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

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

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


                                         -9-
206   the restriction       on    student      representation       in   the   role    of    an

207   attorney of any group or individual whose repreentation has been

208   solicited by any person associated with the clinic.

209        The Plaintiffs’ second general claim is that regardless of

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

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

212   clinics’ and their clients’ political speech and advocacy in the

213   Shintech    matter,    and       is   therefore      an   impermissible     form      of

214   viewpoint discrimination.              The Plaintiffs’ claim that the LSC

215   amended Rule XX in direct response to pressure from business

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

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

218   the LSC in enacting Rule XX.

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

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

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

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

223   that the indigence requirements are not unlike those of several

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

225   disqualifies     individuals             from      clinic     representation           is

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

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

228   client organizations are entitled to pro bono representation in

229   civil cases    there       has    been   no      actionable   deprivation       of    any



                                                -10-
230   protected right.

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

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

233   represent others in litigation, that the litigation activities the

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

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

236   responds to the viewpoint discrimination claims in much the same

237   way, arguing that Rule XX does not affect any party’s rights of

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

239   may have speech and associational freedoms that protect pro bono

240   representation of clients for political reasons, lay persons and

241   law students have no such rights.            Since Rule XX does not affect

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

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

244   associational interests.

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

246   Plaintiffs have standing; whether Plaintiffs have stated a claim

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

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

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

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

251   LSC’s promulgation of the rule constitutes actionable viewpoint

252   discrimination in this context.

253


                                            -11-
254                                    Standing

255        All of the Plaintiffs in this case fall into one of four

256   categories.       The   first    group    is   comprised      of     community

257   organizations and individuals that have either been clients of the

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

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

260   consists of law professors and clinical law instructors who oversee

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

262   consists of three Tulane University law students, two third year

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

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

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

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

267   student organizations, the Tulane Environmental Law Society (an

268   organization   of   students    that   includes   some   of    the   students

269   enrolled in the Tulane Environmental Law Clinic) and the Tulane

270   Graduate and Professional Student Association.5               Neither Tulane

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

272   university or law clinic.

273        To satisfy the standing requirement, a party must establish

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

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



           5
            Another individual party plaintiff below (Shearer) did not join
      in this appeal; consequently, we disregard him.

                                         -12-
276   protected interest which         is both (a) concrete and particularized,

277   and (b) actual or imminent and not conjectural or hypothetical.

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

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

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

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

282   action    of   a   third   party.      Id.     Third,    the       injury    must   be

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

284   that a favorable decision will redress the plaintiff’s injury. Id.

285   The   party    invoking    federal    jurisdiction      bears       the    burden   of

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

287   factual   allegations      of    injury    resulting    from       the    defendant’s

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

289   general factual allegations embrace those specific facts that are

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

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

292         According to the complaint, Rule XX directly regulates the

293   operations of law school clinics in Louisiana and significantly

294   alters the ways in which those clinics can permissibly function.

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

296   the   client    organizations       will   hereafter    be    unable       to   obtain

297   representation      from   the    clinics.       Given       the    expansive       and

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

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


                                             -13-
300   of the Plaintiffs so as to constitute an injury in fact.    At least

301   some of the Plaintiffs have standing to bring each type of claim

302   currently before the court.     Accordingly, we next address the

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

304   claim that the indigence and solicitation restrictions, on their

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

306   Amendment.

307                         Indigence Requirements

308        Rule XX now requires that clinical student practitioners

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

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

311   current federal poverty guidelines as established by the Department

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

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

314   current federal poverty standards the clinics are permitted to

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

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

317   less than $33,340.   Id.   Contrary to the Plaintiffs’ assertions,

318   the rule does not require individuals to provide detailed financial

319   information to obtain representation–the rule simply states that

320   the clinics may only represent individuals who fall within the

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

322   rule subjects their clients to invasive discovery intended to

323   obtain embarrassing financial information.     However, the LSC has


                                      -14-
324   always     required   that     student        practitioners    represent       only

325   “indigent” community organizations.              See Louisiana Supreme Court

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

327   discovery requests will dramatically increase is clearly based

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

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

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

331   other than to limit clinical representation to clients who are

332   poor.

333        The     indigence      requirements       alone   implicate       no   speech

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

335   Classifications based on wealth alone are not subject to strict

336   scrutiny.      See    San    Antonio     Independent       School   District    v.

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

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

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

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

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

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

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

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

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

346                            Solicitation Restrictions

347        The Plaintiffs argue that section 10 of Louisiana Supreme Court


                                             -15-
348   Rule XX is an impermissible restriction on their rights of free speech

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

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

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

352   speech.

353        The First Amendment prohibits the government from enacting

354   solicitation restrictions that prevent attorneys from offering their

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

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

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

358   and referring those individuals to lawyers. And, in In re Primus, 98

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

360   constitutionally subjected to discipline for informing members of the

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

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

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

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

365   be infringed without a compelling state interest.

366         A careful examination of those decisions reveals, however,

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

368   example, in both Button and Primus, the solicitous speech was itself

369   prohibited. In Button, under Virginia's statute solicitation was a

370   misdemeanor, and the penalties for solicitation included imprisonment

371   for up to six months. Button, 83 S.Ct. at 334 n.7 (citing Va. Code §


                                        -16-
372   54.82 (1958)). Similarly, Edna Primus's letter soliciting a client on

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

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

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

376   in such speech subjected the speaker to criminal or disciplinary

377   sanctions.

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

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

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

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

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

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

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

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

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

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

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

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

390   indirectly discourages speech—by refusing the educational experience of

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

392   practitioners in clinics whose members or employees engaged in

393   solicitation of that matter.

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

395   educational experience is far from extreme.      The students are not


                                        -17-
396   prohibited from or restricted in working on clinic solicited cases as

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

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

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

400   representation is available from the clinics.          And, targeted

401   solicitation only implicates the students’ representation as attorneys

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

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

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

405   invalidated by the Supreme Court in Button and Primus.8

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

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

408   of the bar.   The LSC has a heightened interest in overseeing the


           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.
            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.

                                       -18-
409   practice of law by non-attorneys in Louisiana. Indeed, the LSC need not

410   have ever allowed–and did not at all until relatively recently–non-

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

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

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

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

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

416   to grant to Louisiana law students.

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

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

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

420   attorney can otherwise do–to representing as attorneys nonsolicited

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

422   is significantly different from the criminal or quasi-criminal

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

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

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


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

427   of legal clients generally, the ethical prohibitions against attorney

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

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

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

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

432   nature of the solicitation provision, combined with the unique status

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

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

435        By allowing unlicensed law students at clinics to practice law

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

437   representation   to   poor   Louisianians   and   providing   educational

438   opportunities to Louisiana law students. See Louisiana Supreme Court

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

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

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

442   (2001), the Supreme Court invalidated a congressional funding

443   restriction that prohibited Legal Services Corporation attorneys from

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

445   federal welfare system.       The Court held that the restrictions

446   unconstitutionally regulated private expression in an arena in which

447   Congress had funded Legal Services Corporation attorneys to represent

448   indigent litigants. Velazquez, 121 S.Ct. at 1051-52. A major concern

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


                                         -20-
450   representation in certain classes of cases; the restrictions, the Court

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

452   preventing them from making certain arguments in particular cases:

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

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

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

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

457   truncate presentation to the courts, the enactment under review

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

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

460   a Legal Services Corporation lawyer could withdraw from a representation

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

462   problems the rule caused.    Id. at 1051.

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

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

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

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

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

468   the scope of the litigation it funds to exclude certain vital theories

469   and ideas.”    Velazquez, 121 S.Ct. at 1052.       In contrast to the

470   regulations in Velazquez, Rule XX does not limit speech by the clinics'

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

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

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


                                        -21-
474   caveat—the students, who are not lawyers, may not represent, as lawyers,

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

476   Velazquez,   Rule   XX   imposes   no     restrictions   on   the   kind   of

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

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

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

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

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

482   this case.

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

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

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

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

487   criminal sanctions and disciplinary penalties involved in Button and

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

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

490   Court in Velazquez are implicated by Rule XX. The First Amendment does

491   not prohibit the LSC from imposing this viewpoint neutral limit on the

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

493   Louisiana courts.

494                Viewpoint Discrimination and Retaliation

495        Our holding that the solicitation requirements are facially

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

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


                                         -22-
498   Court to suppress political speech it has deemed undesirable.

499   Specifically, the Plaintiffs allege that the Governor and various

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

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

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

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

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

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

506   rule is facially viewpoint neutral and is not otherwise constitutionally

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

508   alleged motivation has on the constitutionality of Rule XX.

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

510   is some support for the Plaintiffs' contentions that the motivation of

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

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

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

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

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

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

517   See, e.g., Edwards v. Aguillard, 107 S.Ct. 2573 (1987) (striking down

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

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

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

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


                                        -23-
522   allegedly because of the professor's public criticism of the Board of

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

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

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

526   executive order which limited participation in a charity drive among

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

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

529   excluded legal defense and political advocacy groups. The district

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

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

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

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

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

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

536   however:

537        “While we accept the validity and reasonableness of the
538        justifications offered by petitioner for excluding advocacy
539        groups from the CFC, those justifications cannot save an
540        exclusion that is in fact based on the desire to suppress a
541        particular point of view.”
542        . . . .
543
544        “. . . the purported concern to avoid controversy excited by
545        particular groups may conceal a bias against the viewpoint
546        advanced by the excluded speakers. . . .Organizations that
547        do not provide direct health and welfare services, such as
548        the World Wildlife Fund, the Wilderness Society, and the
549        United States Olympic Committee, have been permitted to
550        participate in the CFC. . . .the issue whether the Government
551        excluded respondents because it disagreed with their
552        viewpoints was neither decided below nor fully briefed before
553        this Court. We decline to decide in the first instance
554        whether the exclusion of respondents was impermissibly


                                        -24-
555        motivated by a desire to suppress a particular point of view.
556        Respondents are free to pursue this contention on remand.”
557        Id. at 3454.
558
559        This language in Cornelius provides the Plaintiffs with some

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

561   Cornelius involved a rule which actually prevented certain groups from

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

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

564   their identity and the content of their speech. Id. at 3451. Those

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

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

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

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

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

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

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

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

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

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

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

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

577   case requires us to examine the motivation underlying every governmental

578   decision for viewpoint neutrality.



           11
             Nor do Plaintiffs argue that Rule XX creates any kind of forum
      for speech.

                                        -25-
579        Additionally, the Plaintiffs' assertion that Cornelius stands for

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

581   any state action into an unconstitutional suppression of speech or

582   viewpoint is belied by the Court's decision in Rust v. Sullivan, 111

583   S.Ct. 1759 (1991).   In Rust, the Supreme Court upheld Department of

584   Health and Human Services regulations that attached several conditions

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

586   regulations were requirements that Title X projects refrain from

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

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

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

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

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

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

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

594   upheld in Rust explicitly prohibited the expression of a particular

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

596   limited the holding of Rust to occasions in which the government itself

597   is the speaker, or to “instances, like Rust, in which the government

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

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

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

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

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

                                        -26-
603   are relaying to their clients. And, Rule XX does not clearly qualify

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

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

606   allowed any unlicensed student to serve in an attorney representative

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

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

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

610   supporting those clinics by its allowance of unlicensed students'

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

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

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

614   but we think that Rust, while not controlling, informs our current

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

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

617   program participants. See Velazquez, 121 S.Ct. at 1049-50; Rust, 111

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

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

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

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

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

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

624        The Plaintiffs have alleged facts that may arguably support their

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

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


                                        -27-
627   allegations of improper purpose, while extensive, do not focus on the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

644   Rule XX into an unconstitutional state action.

645        The fundamental purpose behind the First Amendment is to promote

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

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

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

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

650   restrictions on clinic activities, and, according to the complaint, the



                                       -28-
651   solicitation   restrictions   and    the   new,   more   strict   indigence

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

653   representation for some of the Plaintiffs.           Some of the client

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

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

656   clinics themselves will either be forced to change their educational

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

658   minimal impact on the clinics and the client organizations is

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

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

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

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

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

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

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

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

667   across-the-board, wholly prospective and viewpoint neutral general rule.

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

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

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

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

672   until its motives are shown to be pure.      The LSC need not have ever



           12
              Nor does Rule XX impermissibly interfere with the content of
      the private speech promoted as in Velazquez.

                                          -29-
673   allowed unlicensed students to practice law in Louisiana, and indeed did

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

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

676   context, is irrelevant. As the Supreme Court stated in Rust, “[t]his

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

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

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

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

681   constitute impermissible viewpoint discrimination in violation of the

682   First Amendment.

683                                 Conclusion

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

685   dismissing the action is

                                     AFFIRMED.




           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.

                                        -30-
