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.

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.

How would this line of reasoning apply to racial discrimination in say, the 1960's when representing a black person could harm a law clinic's reputation or that the racial tensions working with such a person would cause disruption in the personal relationships involved or whatever?

These sorts of questions are really tricky, and there may not be any consistent answers, but they're also quite interesting.

1.5.2006 7:47pm
Sorry for the double-post. I wanted to clarify that questions about freedom of association etc. are tricky because they can apply in so many different cases, not that racial questions are tricky.

1.5.2006 7:48pm
R. Gould-Saltman (mail):
Gee, had UND been somewhat more diplomatic and circumspect, they'd not be having this problem. Seems to me that they could have said, on these facts, to Mr. Wishnatsky:
"It appears to us that, based not upon the fact of your prior criticism of our clinic, but the content and nature of your prior criticism, that you're asking us to undertake this representation not because of any valid claim that you really think you have (i.e., that the North Dakota Superior Court is unlawfully promoting the worship of Themis at the instance of worshipers of Themis, should any of them still be around, and favoring the worshipers of Themis over others)
but is rather to make a point, and to consume our limited resources, by retaliating with a "reducto ad absurdum" lawsuit. We don't believe that this is an appropriate request and it appears it is motivated solely by your animus against us. Good day, sir."

That would appear to have solved the problem, without falling into EXACTLY the trap Mr. Wishnatsky seemed to be trying to set up, and at which he succeeded.

Ah, the benefits of 20/20 hindsight....

1.5.2006 8:17pm
What a great way to reward a crank; let him proceed with a frivolous lawsuit based on the clinic's refusal to prosecute his previous frivolous lawsuit. But yes, on the very narrow legal issue presented, there may well be a debatable issue.

Let's frame the issue this way: If the government enters into the business of providing legal services, may it refuse those services to a person solely on the basis that they have criticized the arm of the government which provides legal services?

At first blush, I would say no, the government has to treat you equally even if you criticize it. But the problem is that the person's motivation in seeking the legal services is most likely not to prosecute a meritorious lawsuit, but to consume the government's time and resources in order to make a point. Just as the ACLU need not let itself be hijacked by Communists who want to undermine the organization's very purposes (heh), the government need not let its services be hijacked by cranks who wish to interfere with those services.

The fact that legal services involve extensive personal conduct probably doesn't change the overall legal analysis. After all, the mere fact that someone has criticized you doesn't automatically mean you can't work together. As for the argument that the clinic's true purpose is to educate, it doesn't really matter since that issue was not before the court. If the defendant were to prove that the real reason they turned away the case was that they didn't believe it would be educational enough, yes, that should be a good defense. But the fact that the governmental purpose is education doesn't mean it would have carte blance to discriminate against racial minorities, for example, and it doesn't mean it should be allowed to engage in viewpoint discrimnation, either. In fact, I'd argue that dealing with a difficult client is extremely educational.

But still, in the context of a motion for judgment on the pleadings, the court can't properly consider those issues. Is it true that any time you are denied government services, you can file a lawsuit indicating that the government engaged in "viewpoint discrimination" based upon some statement you made? Well yes, you can, and you're probably entitled to get past the pleading stage. The remedy is Rule 11 sanctions, and if you repeatedly engage in this conduct, the court can take the sort of action it tends to take against repeat offenders.
1.5.2006 8:26pm
Kent Scheidegger (mail) (www):
The clinic should eventually win, as they surely had good enough reasons to reject the case independently of the plaintiff's criticism of them. They probably deserved to lose the first round, though, just for writing such a stupid letter. You have to wonder if the author of the letter is a good enough lawyer to be teaching students.
1.5.2006 9:03pm
Rob Natelson (mail):
Who's the crank here?
First, why is a law school clinic representing someone challenging Ten Commandments monuments? This doesn't sound like the kind of case legitimate public clinics normally take -- was the clinic's client somehow threatened with jail or a government benefit cut-off because of the monument, and couldn't afford a lawyer?
More likely, the choice to use public resources to bring the case (including the resources of a lot of taxpayers who would disagree) sounds itself pretty ideological. In fact, in the highly likely probability that the clinic doesn't also do things like bring suits to vindicate Second Amendment rights or protect folks against property takings, one could say that there was an element of viewpoint discrimination going on long at the clinic long before it turned down Mr. Wishnatsky. (In this respect, it would not be unlike some other law school clinics.)

I agree that the clinic botched the turndown, but it's a symptom of political fanatism that the fanatic is too impatient and self-righteous and insufficiently self-reflective to exercise discretion in such matters.

Mr. Wishnatsky exposed that. It was a brilliant stroke. One hopes the taxpayers and policymakers of North Dakota respond appropriately.
1.5.2006 9:38pm
Scott Noveck (mail):
Eugene: I agree that legal clinics do need to use some "discretionary criteria" in selecting cases. To that end, if the decision was made for a reason like "we don't like the point of view that this case is advocating for," it sounds like your defense might apply. After all, any decision about which cases to take will have to make decisions based on the content of the case -- do we really want the alternative, which would be for the clinic to choose which cases to take by drawing names out of a hat?

On the other hand, the claim here isn't that they're discriminating based on the content of the case; rather, it's that they don't like the point of view expressed in past speech made by the client, which is entirely different. For instance, we would think there was something wrong if whenever the clinic received an application to take a case, they performed a background check on the person making the application, and then rejected the case if that found that he'd donated more money to Republicans than to Democrats in the past four years. Discriminating based on the content of the case seems necessary, but discriminating based on the viewpoint of past comments by the client bringing the case does not. So I don't think that your defense applies in this case.

On the other hand, I'm not sure if viewpoint discrimination has actually taken place here at all. The decision wasn't that the clinic wouldn't take the case because they want to punish Wishnatsky for his past criticism of the university; rather, it's that as a result of the past speech - whether we agree with its point of view or not - it would no longer be possible for the clinic to effectively cooperate with this client. The problem is with an effect the speech had, not with the content of the speech. Admittedly, this is a very fine line to draw. But it's the same line that's drawn to support the ban on child porn: we might detest it and think that it's disgusting, but we don't ban it because we dislike it; rather, we ban it because it has the effect of encouraging abusive and exploitative practives that often arise in its production. So the university could say that it's irrelevant what the content of Wishnatsky's speech was or whether we agree with it; what's relevant is that it had the effect of creating antagonism between him and the university, and that antagonism would make cooperation impossible. That's a viewpoint-neutral reason for rejecting his application, so it might not be correct view this as a case of viewpoint discrimination at all.
1.5.2006 10:41pm
The Original TS (mail):
There is a first amendment argument here but I think it runs the other way.

The primary function of a law school clinic is educational. The primary function of a legal services corporation is to provide legal services. To put it another way, legal services corporation provide legal services as a government benefit. Public law school legal clinics provide legal education as a "government benefit."

There is, therefore, a First Amendment academic freedom argument to be made by both the professors running the clinic and the students. A lawyer is not a bus. He or she is not compelled to represent anyone (though it is, of course, unethical to reject clients for some reasons). Since the primary purpose of a law school legal clinic is education rather than representation, it is permissible to both accept and reject clients for educational purposes.

It is, therefore, perfectly acceptable for the clinic to choose not to represent someone because the professor running it does not think working on the case would further the students' educations. It is also acceptable, however, to reject a client because the the professor does not think working with the client would further the students' educations. Indeed, the act of rejecting the client could, itself, further the clinic's educational purpose. I can easily picture the students sitting around a big table discussing which cases to accept and having the professor in charge of the clinic explaining why people like Mr. Wishnatsky make difficult clients and are best avoided.
1.5.2006 11:07pm
Why didn't they just refuse the case on the grounds that the original suit was without merit?
1.6.2006 1:42am
This was decided on a motion to dismiss, which means the court had to consider everything the plaintiff said was true. The court basically gave the clinic an outline of what affidavits to file in support of a summary judgment motion.

As a government lawyer, I'd rather face a 1983 suit based on the First Amendment than malpractice or disciplinary action. Accepting this crank as a client would almost guarantee both.

In a 1983 action the government has to defend me. The government would have to defend my malpractice case, but I might be on my own in a disciplinary action. Also, in a disciplinary action, my right to practice law for anyone would be at risk, but in a 1983 action, only my office's money would be at stake.

That said, as a public defender, I take it as part of my job to accept clients that private lawyers can't risk taking. I have a much better safety net.

My first letter to prospective clients always says that I do not represent them and that they are responsible for their cases unless I write to tell them otherwise.

When I get letters from obvious cranks, I look at their cases, but I write a very simple denial letter if I don't take them as clients. The more you write, the more the rejected client is tempted to write back and argue.
1.6.2006 8:38am
Anonymous coward:
The Court and many here are being far too kind to the plaintiff under these circumstances. There is no basis for the proposition that plaintiff has a 'right of access' to the law school clinic; there is no assertion that they are the sole suppliers of legal services, and it is unlikely to be so. What is plaintiff's complaint, then? That he has a First Amendment right to compel the clinic to take his case, regardless of its merits, since he has previously criticized the clinic and therefore if they fail to accept his case, it MAY be due to 'viewpoint discrimination' and the law school clinic (and its personally-sued director) will be forced to defend the case through discovery. This is not merely baloney, but expensive and time consuming and enormously disruptive baloney wasted in what is transparently a petty attempt at revenge by the plaintiff. The Eighth Circuit ventures into LaLa land, however, with its absurd comnent that the plaintiff and clinic 'may have been able to bury the hatchet and start anew with a common purpose' [paraphrase]. If the Ninth Circuit had published such idiocy, it would be roundly haled as further proof of its presumptive reversability.
1.6.2006 8:40am
Hmm. If I do legal work for the Bush campaign, would it be viewpoint discrimination for me to decline work for the Kerry campaign? or just avoidance of a conflict of interest? Why isn't the legal clinic required to decline representing its critic in order to avoid a conflict of interest between him and the previous clients he has criticized?
1.6.2006 8:58am
Daniel G:
I was happy to hear about this outcome. Maybe the law clinic wil finally agree to take my case regarding the sacrificial altar to CTHULU and the Great Old Ones in front of city hall. That affront has been going on way too long!

I mean, anything else would be viewpoint discrimination, right :)
1.6.2006 10:27am
Houston Lawyer:
Looks like the professors running this legal clinic got schooled by an antagonist. What fun! I wish I was smart enough to coerce a legal clinic to bring suit to prosecute my pet peeves.
1.6.2006 10:43am
jimbino (mail):
It is fundamentally unfair that government use taxpayer money to promote a particular point of view, whether as in this case or in the case of evolution vs. intelligent design. The government should simply get the hell out of the business of education and stick to trying to deliver the mail.

Education always promotes, per se, a partisan view that is not worthy of public support. Since there is no justification for federal support of public education in the US Consititution, and in view of the fact that almost all profs are socialists, now is the time for the people to get the feds out of education and start working on rectifying the state consititutions.
1.6.2006 11:03am
Steve Lubet (mail):
Accepting a client and accepting a lawsuit are not the same thing. The clinic could agree to interview the plaintiff, conduct reasonable research, and then decline to pursue his case if (as expected) it turns out to be unsupportable.
1.6.2006 11:04am
Cheburashka (mail):
It looks like Wishnatsky was well-served by the decision not to take him on as a client.

It amazes me that the law clinic chose to litigate the 1st Amendment issue rather than the professional ethics issue that the clinic could not ethically take on a client openly antagonistic to it personnel, against whom those personnel had developed personal animosity.
1.6.2006 1:57pm
Tongue in Cheek:
Is no one but me alarmed by the threatened War on Themis?

What pundit will rise to the defense?
1.6.2006 4:50pm
fed-up taxpayer (mail):
I wish to respond to DK's comment. DK wrote

Hmm. If I do legal work for the Bush campaign, would it be viewpoint discrimination for me to decline work for the Kerry campaign? or just avoidance of a conflict of interest? Why isn't the legal clinic required to decline representing its critic in order to avoid a conflict of interest between him and the previous clients he has criticized?

This illustrates precisely the problem the legal clinic created by taking on a cause. As a PRIVATE lawyer, you are free to work for Bush but not Kerry, or vice versa, or whatever. But what if a state-tax-funded university decided to provide free legal services to the Kerry campaign? Or decided to attack all laws restricting abortions, but not any laws restricting gun rights?

In fact, I'd go further. I don't think STATE-paid profs should use state-paid equipment and staff to help prepare litigation for their pet causes. "Academic freedom" ?? Then don't demand MY money. I have no right to subsidize you for my pet causes, why can you pick my pocket?

I say de-fund them all. Let advocacy -- including so-called education -- pay its own way.
1.6.2006 6:35pm
fed-up taxpayer (mail):
Sorry - I meant "I have no DUTY to subsidize you," not no "right." Or, alternatively, you have no right to force me to subsidize you. Or you shouldn't have, thought apparently you do in today's setup.

(By "you," I don't mean DK or any other poster; I mean the prof or clinic director who's picking my pocket for his agenda.)
1.6.2006 6:38pm
David Matthews (mail):
Perhaps if Themis were attired like "Spirit of Justice" she would have more defenders.
1.6.2006 6:39pm
R. Gould-Saltman (mail):
By the way, a quick survey of courthouses in the US shows me that depictions of Themis figure promenently in courthouse decoration. It is thus clear (to me, at least) that the founding fathers intended that this nation be governed on Themis-ist principles (even those of them who explicitly purported to be agnostic or Deist).

Some of the dicta in Justice Thomas' and Scalia's opinions suggest that they hold the view that, under a close reading of the Bill of Rights and thew 14th Amendment, the individual states, (as opposed to the Feds) are in fact entitled to establish Themis-worship as a state religion, including as the official religion of the courts of the several states.

Now, I've personally long advocated a return to original Themis-ist principles, including the use of goat-entrail reading as a tool of dispute resolution (not to be confused with killing chickens as a form of non-adjudicatory worship, cf. CHURCH OF THE LUKUMI BABALU AYE, INC. v. HIALEAH).

I am of course appalled to learn of Mr. Wishnatsky's proposed "War on Themis", which is clearly an perfidious attack on the core moral principles which hold our society together, principles which act as a bastion against the encroachment of barbarism. His actions are the latest in the long series of anti-Themis-ist actions taken by the unpatriotic and impious; I am delighted that a state-sponsored institution refused to participate or assist in his attack on our civilization. Fie upon thee, Mr. Wishnatsky!
1.6.2006 7:10pm