The Justice Department suffered an epic smackdown last night when an Alabama-based federal district judge quashed its abusive subpoena against the Alabama chapter of the Eagle Forum. Still, Judge Liles Burke left one important thing unsaid: The First Amendment should be openly, not merely implicitly, defended.
Through an assistant district attorney, the department had subpoenaed five years of voluminous records from the Eagle Forum of Alabama, a conservative group that had backed a law outlawing sex-change procedures on children. The Eagle Forum was in no way a party to the case at hand, which involved a constitutional challenge, backed by the Biden administration, to that new Alabama law. In essence, the subpoena was a bullying maneuver to punish the Forum and send a message that mere support for such a law would trigger harassment from the U.S. government.
The subpoena was abusive on three fronts. Judge Burke did a good job of castigating the Justice Department on the first two fronts, but he left the final front unaddressed.
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The first question was whether the subpoena was even relevant to the case. The second was whether, even if relevant, it was properly limited rather than an unnecessarily burdensome fishing expedition. The third question was whether, even if relevant and appropriate in scope, it ran afoul of the Eagle Forum’s First Amendment speech and petition rights.
The subpoenaed materials, wrote Burke, “are unlikely to reveal or lead to any information that would help resolve the fundamental issue in this case,” which is a question of the constitutionality of the law at issue. Alas, Burke did not explain why the materials were irrelevant to the case — namely that a law’s constitutionality depends on whether it contradicts the Constitution as written, not on who supported the law or why.
Burke was more specific about why the subpoena was abusively voluminous. “The burden of the requested material greatly outweighs any slight relevance it may have,” he wrote. “Eagle Forum [and another subpoenaed group] are nonprofit organizations staffed almost entirely of volunteers….To produce the requested material, the nonparties’ volunteer staff and pro bono counsel would first have to review thousands of documents, determine which, if any, of those documents are responsive, and then omit or redact any privileged information contained in those documents.”
Because of this, he explained, “the subpoenas, as written, are overly broad and unduly burdensome given the limited resources of the nonparties.” As such, they violate two specific Federal Rules of Civil Procedure. On that basis, Burke quashed the subpoena.
Burke never mentioned the First Amendment implications of the subpoena. On one hand, his silence here is consonant with the “rule of constitutional avoidance,” by which courts avoid sweeping constitutional judgments if cases can be decided on narrower grounds. But sometimes a constitutional question is so important and so inextricably linked with those “narrower” grounds that the larger question at least bears mentioning.
Here, one major reason the subpoena was irrelevant is specifically because the First Amendment makes it so. If an individual or group has a constitutional right to advocate a point of view and communicate with lawmakers in furtherance of it, then that constitutional protection from government interference in those communications is a large part of what makes only the final result — the words of the law itself — rather than the deliberative and communicative process, relevant to the law’s constitutionality.
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When Burke asserted, without further discussion, that the subpoena was irrelevant to the case at hand, he missed the chance to remind the Justice Department that it, too, must respect First Amendment rights.
Given Biden’s politicized Justice Department, that reminder is very much needed.
