On Tuesday, the United States Supreme Court heard oral arguments in First Choice v. Platkin, a case in which the Legal Insurrection Foundation’s Equal Protection Project (EPP) filed an amicus curiae, or “friend-of-the-court,” brief.
Overall, a majority of the Court appears sympathetic to First Choice Women’s Resource Centers, Inc., a collection of five licensed medical centers offering free services and material support to women facing unplanned pregnancies, who are resisting New Jersey’s demand for information about the group’s anonymous donors.
Without identifying a single public complaint, New Jersey Attorney General Matthew Platkin issued a subpoena demanding that First Choice turn over years of sensitive internal information, including donor information, regarding nearly 5,000 contributions to its mission.
At stake in the case before the Supreme Court is not only the free association rights of Americans expressing themselves anonymously through donations to charitable organizations, but the ability of those organizations to continue serving the public interest.
EPP’s amicus brief offered the Court three additional reasons it should protect the First Amendment rights of anonymous donors, several of which were raised on Tuesday during the oral argument.
Attorney Erin Hawley, representing First Choice, argued that the subpoena in question violated First Choice’s First Amendment right to free association the moment it received the subpoena, even if the subpoena was only enforceable if the attorney general sought such enforcement in state court.
In short, First Choice is not required to wait for a state level judicial enforcement to bring a First Amendment claim in federal court.
Chief Justice Roberts appeared to agree, at one point asking whether such a subpoena “might have an effect on future potential donors … to know that their name, phone number, address, et cetera, could be disclosed?”
Justice Kavanaugh also noted that an amicus in the case cautioned against “suppression by subpoena,” saying, “this is just kind of obvious that there’s some kind of objective chill.”
Justice Kagan, perhaps surprisingly receptive to these points, also observed that an ordinary person won’t be “particularly reassured by the fact that” you still need a court order before the subpoena will be enforced. The mere issuance of the subpoena, in other words, might be enough to deter a potential donor.
Attorney Vivek Suri, an assistant to the U.S. solicitor general, agreed with First Choice and argued that non-profit groups like First Choice have the ability to seek relief in federal court as long as there is a “credible threat” that the subpoena would be enforced.
On the other hand, Attorney Sundeep Iyer, representing the New Jersey attorney general, argued that the issuance of a subpoena requiring donor disclosure does not automatically negatively affect the right of free association unless there is some kind of subsequent enforcement action in state court.
In effect, no state court enforcement, no federal claim.
But several justices questioned this framing of the issue, with Justice Gorsuch telling Iyer several times that the subpoena seems “pretty self-executing to me.”
Justice Alito similarly suggested that the attorney general had characterized the subpoena as non-self-executing as a litigation tactic, only having recently raised it.
Eventually, Iyer conceded that if the Court rejects the state’s characterization of the subpoena, there was “no dispute” that First Choice would have a right to sue “from the moment of the issuance of the subpoena,” a startling concession.
As EPP argued in our brief, as a tax-exempt non-profit group serving the public interest, groups like EPP and First Choice depend on donor contributions in order to operate and exist. Those same donors depend on their identities remaining anonymous in order to associate with groups that may be the target of government hostility.
But even more to the point: The First Amendment to the United States Constitution demands the right of Americans to associate with whoever they want, in public or anonymously.
The Supreme Court should rule in favor of First Choice, uphold the free association rights the First Amendment guarantees, and protect non-profits and anonymous donors.
Reminder: we are a small organization going up against powerful and wealthy government and private institutions devoted to DEI discrimination. Donations are greatly needed and appreciated.
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Timothy R. Snowball is a Senior Attorney at the Equal Protection Project.
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