WASHINGTON, D.C. — Today, the Supreme Court decided in First Choice Women’s Resource Centers, Inc. v. Davenport that nonprofits can seek immediate federal court review of state investigatory subpoenas that they claim chill their First Amendment rights. The decision cites an August amicus brief authored by the Foundation for Individual Rights & Expression (FIRE) and joined by the American Civil Liberties Union and the ACLU of New Jersey that argues in support of groups’ right to seek federal relief.
“We’re grateful that the Court has recognized that even before they’re enforced, law enforcement subpoenas seeking sensitive donor information can scare away the supporters that are essential to any nonprofit’s work,” said Brian Hauss, deputy project director of the ACLU’s Speech, Privacy, and Technology Project. “At a time when government officials throughout the country abuse regulatory powers to punish their ideological opponents, federal courts must remain a venue in which people can vindicate their First Amendment rights.”
In 2023, New Jersey Attorney General Platkin issued subpoenas under the state’s consumer protections laws to First Choice Women’s Resource Centers, a nonprofit that runs anti-abortion crisis pregnancy centers. The subpoenas sought wide-ranging information about the nonprofit, including the identity of its donors. First Choice challenged the subpoenas in federal court, arguing that the information sought chilled its First Amendments rights to speech and association. The Third Circuit dismissed First Choice’s claims, saying it could not assert its First Amendment rights in federal court until the state enforced the subpoena in state court.
“Thankfully, the Court ruled that federal courts remain open for nonprofits to challenge government subpoenas that could be used to target them based on their viewpoint,” said Jeanne LoCicero, legal director of the ACLU of New Jersey. “It is crucial for advocacy organizations – wherever they fall on the political spectrum – to have a legal path to fight retaliatory conduct by government officials.”
The FIRE/ACLU brief argued that state law enforcement subpoenas seeking sensitive donor information threaten to chill protected speech and association even before they are enforced in state court. To ensure that these investigatory tools are not abused to retaliate against the ideological opponents of those in office, federal courts must be available to promptly review claims that law enforcement subpoenas violate the First Amendment.
The amicus brief was filed in August. It can be read here.
This matter is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.