The Supreme Court issued an important opinion in First Choice Women’s Resource Centers, Inc. v. Davenport recently that protects people, particularly those who band together to promote unpopular or controversial positions, from government overreach.
At first blush, First Choice may not seem that important: it was a unanimous opinion that dealt principally with whether the plaintiff had alleged an “injury-in-fact,” one of the requirements to bring any lawsuit in federal court.
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But Justice Neil Gorsuch’s seemingly technical and uncontroversial opinion may serve as an important shield against government overreach in years to come.
FIRST VICTORY IN FIRST CHOICE: THE FIGHT FOR PREGNANCY CENTER RIGHTS MOVES ONWARD
The case began when the New Jersey attorney general’s so-called “Reproductive Rights Strike Force” targeted a pro-life organization that provides healthcare and counseling to pregnant women with a subpoena for private donor records.
New Jersey first targeted First Choice by putting out a “consumer alert” warning New Jersey residents of organizations that provide “false or misleading” information about abortions. Despite this alert, not a single person filed a complaint about First Choice. Nonetheless, the attorney general issued a subpoena to First Choice under the state’s Consumer Fraud Act seeking 28 categories of documents, including, most crucially, details about First Choice’s donors. First Choice sued to prevent the New Jersey attorney general from enforcing the subpoena, but the lower court dismissed the case, holding that First Choice had not yet suffered the requisite “injury-in-fact” because a state court had not yet ordered First Choice to comply with the subpoena.
While the Supreme Court did not reach the question of whether the New Jersey attorney general did indeed violate First Choice’s First Amendment rights, the unanimous opinion is important in two key respects.
First, the court’s discussion of associational rights confirms that the First Amendment protects not just what people say, but who they stand with when they say it. Gorsuch emphasized that the freedom to associate is inseparable from the rights explicit in the First Amendment, namely speech, worship, assembly, and petition. Strip away the ability to associate freely, and “the government could reduce any assembly to a party of one, and the right to petition would amount to nothing more than the power to sign one’s own name alone.”
The court recognized that associational rights carry special weight for political, religious, and other minorities, because it is precisely these groups who are most vulnerable when the government can expose their membership and donor rolls. That is why the court has subjected government demands for private donor information to heightened First Amendment scrutiny since at least NAACP v. Alabama in 1958 and why it reaffirmed in First Choice that such demands inflict a real constitutional injury the moment they are issued.
Second, by allowing First Choice to challenge the subpoena itself, the court ensured that organizations can fight back against hostile government officials who weaponize the investigative process. The New Jersey attorney general argued that because the subpoena was not “self-executing,” meaning it could only be enforced by a separate court order, First Choice had not yet suffered any injury and therefore had no right to challenge it in federal court.
The practical effect of that argument, had it prevailed, would have been to force organizations such as First Choice to spend months embroiled in costly litigation over a subpoena that may be unconstitutional from the get-go, all while chilling donations from individuals who may not want their names exposed. The court rejected this reasoning decisively, holding that the injury to First Choice’s associational rights began the moment the subpoena was issued and continued for as long as it remained outstanding.
As Gorsuch put it, quoting a dissent written by late Justice Thurgood Marshall, “the value of a sword of Damocles is that it hangs—not that it drops.” An official demand for donor records in the form of an onerous subpoena, backed by threats of contempt and penalties, does its damage immediately.
SUPREME COURT GETS IT RIGHT: HARASSED PREGNANCY CENTER DESERVES ITS DAY IN FEDERAL COURT
First Choice is, on its surface, a case about justiciability, the technical rules that determine when a federal court can decide a case or controversy. But its implications run far deeper.
In an era when state attorneys general have grown increasingly bold about using investigative tools to harass and intimidate organizations whose values they oppose, the court has sent a clear message: The process may very well be the punishment, so organizations can challenge that process.
Jesse D. Franklin-Murdock is the Miles visiting fellow at the Center for American Liberty. He is also a partner at Sweigart Murdock in San Francisco, where his litigation practice focuses on First Amendment and defamation law, civil rights, and political law.
