The Supreme Court on Wednesday ruled in First Choice Women’s Resource Centers v. Davenport that a group of faith-based pregnancy centers can litigate their challenge to New Jersey’s demands for information about the group’s fundraising practices in federal court. In a unanimous decision by Justice Neil Gorsuch, the justices rejected the lower courts’ conclusion that the group, First Choice Women’s Resource Centers, had not shown it had suffered the kind of injury from the subpoena that would give it a legal right to sue, known as standing.
Although New Jersey says that it is investigating whether First Choice may have misled women about whether it provides certain reproductive-health services, such as abortions, the court’s ruling focused instead on the more technical – but not insignificant – question of when organizations and advocacy groups can bring lawsuits in federal court.
First Choice describes itself as a “faith-based nonprofit” that provides “material support and medical services like ultrasounds and pregnancy tests under the direction of a licensed medical director.” In 2023, Matthew Platkin – who was then New Jersey’s attorney general – issued subpoenas to the group, seeking, among other things, information about its donors.
First Choice challenged the subpoena in federal court in New Jersey. The group contended that the subpoena would discourage both its own speech, because it prompted the group to remove videos that identified its staff from its YouTube channel, and that of its donors, who would be less likely to make contributions out of concern that their identities would be revealed.
A federal judge in Trenton, New Jersey, twice refused to block the subpoena. U.S. District Judge Michael Shipp initially ruled that he could not yet decide on the dispute because only a state court has the power to enforce or block a subpoena, and it had not yet done so. After a state court later instructed First Choice to “respond fully” to New Jersey’s demands for information, First Choice returned to the district court, where Shipp once again concluded that he lacked the power to rule on the dispute at that time. Although the state court had granted Platkin’s request to enforce the subpoena, Shipp wrote, it had not yet determined whether First Choice would face sanctions if it did not comply – that is, First Choice had not shown that it had actually been injured by the subpoena.
A federal appeals court agreed. It emphasized that First Choice could continue to argue in state court that the subpoena’s demands violated the First Amendment. Moreover, it added, the scope of the donor information that the attorney general was seeking was relatively narrow, and First Choice had not yet demonstrated that it was seriously injured by the state’s requests.
In a unanimous 22-page opinion on Wednesday, the Supreme Court reversed the lower court’s decision, clearing the way for First Choice’s lawsuit to move forward in federal court. Gorsuch focused on whether First Choice had a legal right to sue, and in particular whether the group could meet the requirement that it have suffered an “actual or imminent” injury as a result of the subpoena.
First Choice, Gorsuch noted, argues that the state’s demand for information about its donors constitutes an “actual or imminent” injury because it deters donors from associating with the group. Gorsuch agreed. The subpoena, he wrote, cautions that a failure to provide the information that it seeks “may render you liable for contempt of Court and such other penalties as are provided by law.” First Choice also submitted two declarations to the lower court: one in which “several donors represented that ‘[e]ach of us would have been less likely to donate to First Choice if we had known information about the donation might be disclosed’”; and another in which the group’s “executive director similarly represented that the Attorney General’s request threatened to ‘weaken [the group’s] ability to recruit new donors.’”
“All this,” Gorsuch concluded, “is more than enough to establish injury in fact under our precedents. An injury in fact does not arise only when a defendant causes a tangible harm to a plaintiff, like a physical injury or monetary loss. It can also arise when a defendant burdens a plaintiff’s constitutional rights. And our cases have long recognized that demands for a charity’s private member or donor information have just that effect.”
As further evidence of the “commonsense” nature of the court’s holding, Gorsuch pointed to the array of “friend of the court” briefs supporting First Choice in this case. “Groups ranging from the American Civil Liberties Union to the National Taxpayers Union Foundation to the Church of Jesus Christ of Latter-day Saints have filed briefs in this case explaining that, ‘[e]ven if a subpoena targeting First Amendment activity is never enforced in court, [it] will give its targets a very good reason to clam up [and] give the target organization’s members and supporters a very good reason to abandon the cause.’”
Gorsuch considered, but rejected, the three contentions at the core of the state’s argument. It does not matter, Gorsuch said, whether the subpoenas are “non-self-executing” – that is, that they are not legally binding until the state goes to court and obtains an order directing First Choice to comply with them. “[T]he value of a sword of Damocles” – the ancient parable about a king’s courtier who is forced to sit through a meal on the king’s throne with a sword hanging over his head, suspended by a single strand of horsehair – “is that it hangs—not that it drops,” Gorsuch emphasized. Even if the subpoena could not be enforced immediately, Gorsuch wrote, “[a]n objectively reasonable recipient of a demand like that would be induced … to trim its protected advocacy knowing it now stands in the government’s crosshairs.”
Gorsuch also dismissed the state’s suggestion that the subpoena to First Choice could not have deterred donors because they still had the option to donate to the group through one website that, in the state attorney general’s view, “could not mislead a potential donor into thinking that First Choice provides or refers for abortions.” But the question before the court, Gorsuch maintained, “isn’t how badly the Attorney General has burdened First Choice’s associational rights; the question is whether he has burdened those rights at all. And by effectively restricting how First Choice may interact privately with its donors, the subpoena did just that.”
Finally, Gorsuch was equally unpersuaded by the state’s contention that First Choice was not injured by the subpoena because a state court will issue a protective order that requires any donor information provided pursuant to the subpoena to be kept private. Gorsuch noted that “no such protective order presently exists” and that even ostensibly private data could be leaked to the public. But in any event, he concluded, “[a]n official demand for private donor information is enough to discourage reasonable individuals from associating with a group. It is enough to discourage groups from expressing dissident views.”
Referring back to the Supreme Court’s 1958 decision in NAACP v. Alabama, in which the Supreme Court reversed a ruling by the Alabama state courts that fined the NAACP $100,000 for refusing to disclose its membership rolls in response to a request from that state’s attorney general, Gorsuch queried, “would it have been an answer in NAACP v. Alabama if the State’s Attorney General promised to keep the NAACP’s membership rolls to himself?”