A sweeping—and unlawful—subpoena

For decades, the Supreme Court has recognized a core safeguard of the First Amendment: the right of citizens to associate privately without fear that the government will expose, interrogate, or retaliate against them. And the court has long treated membership and donor lists as protected associational information—precisely because disclosure can chill speech that democracy depends on.

Yet in First Choice Women’s Resource Centers, Inc. v. Platkin, New Jersey’s attorney general has done exactly what the Constitution forbids. He issued a sweeping subpoena demanding that First Choice—a small nonprofit that provides free material support, counseling, and medical services to women facing unplanned pregnancies—hand over nearly half of its donor list, including names, home addresses, and phone numbers. Worse, the attorney general has said that he intends to contact and question those donors about their support for the pro-life organization.

This is not consumer protection. It is targeted harassment of a disfavored viewpoint. But under the First Amendment, donor lists are not poker chips the government can demand whenever it dislikes a group’s message.

Yet the lower federal courts held that First Choice must litigate its First Amendment claims in state court first. That defies Section 1983—a statute enacted by the Reconstruction Congress in 1871 to provide a federal forum to review claims of malfeasance by state or local officials.

The absurdity of the district court’s rule is plain: Imagine a state attorney general issuing a retaliatory subpoena demanding that the NAACP turn over its membership list. Under the district court’s approach, the NAACP would have to wait for a state court to order production—at which point different legal doctrines that disallow litigants from relitigating in federal court issues decided by a state court would come into play. The federal courthouse doors would effectively be sealed shut.

The New Jersey attorney general proposes a subpoena exception to ordinary Article III rules. He says that, under New Jersey law, a subpoena is completely voluntary and a state court must issue an order enforcing the subpoena before First Choice can be punished for noncompliance. Never mind that most ordinary people do not view a subpoena’s commands as voluntary. Never mind that the particular subpoena he issued to First Choice twice threatened the organization that it could be liable for contempt if it failed to comply. And never mind that he told the state court that First Choice had violated three separate laws by failing to hand over its donor names.

In any event, the attorney general’s theory about New Jersey law is beside the point. Under Supreme Court precedent, even an unenforceable threat can violate free-association rights. A subpoena from the government stating “give us your donor list or else” is enough to silence people—court order or not.

First Choice’s First Amendment injury occurred the moment the attorney general served his subpoena. When a hostile state official demands the names of your supporters and threatens you with contempt, the chill is immediate. Donors start to worry. Staff begin to self-censor. The organization must divert its resources and attention from its life-saving mission to compliance with the subpoena.

Thankfully, the freedom to associate privately is a safeguard for every American—regardless of ideology. That is why the ACLU, an organization that wouldn’t ordinarily support a pregnancy center, filed a brief with the Supreme Court in support of First Choice. It urged the court to allow First Choice to present its constitutional claims in federal court, because if the government can expose the supporters of First Choice today, it can expose the supporters of any disfavored organization tomorrow. The Supreme Court should reverse.

Editor’s note: The author and Alliance Defending Freedom represent First Choice.