Supreme Court Opens the Door for Non-Profits Targeted by State Regulators to Sue in Federal Court to Protect Their Donor Information
By: Kellen Dwyer and Andrew Episkopos
Last week, the Supreme Court held that organizations have the right to challenge subpoenas seeking the identity of its donors in federal court, recognizing that such demands for sensitive information chill protected First Amendment associational rights.
At issue in First Choice Women’s Resource Centers v. Davenport was the New Jersey attorney general’s attempt to subpoena First Choice, a religious nonprofit organization that had provided pro-life counseling to pregnant women in New Jersey, for the “names, phone numbers, addresses, and places of employment” of all individuals who had made donations to the organization. Believing that the state’s demand for information violated its First Amendment rights, First Choice challenged the subpoena’s constitutionality in federal court. The district court, however, dismissed First Choice’s lawsuit, reasoning that because there was no state court order compelling production, First Choice had yet to suffer any injury from the subpoena and therefore did not have standing to sue.
In a unanimous opinion authored by Justice Gorsuch, the Supreme Court reversed. The Court explained that demands for private donor information “inevitably” carry with them a “deterrent effect on the exercise of First Amendment rights” because there is a “vital relationship” between “privacy in one’s associations” and the “freedom to associate.” That is so not just when a demand is enforced by a court order, but when it is made under threat of enforcement and for as long as it remains outstanding. Moreover, the Court explained that demands for private donor information “chill” protected First Amendment associational rights “even when those demands contemplate disclosure only to government officials and not the general public.” When information about donors is at risk of coming into the possession of the government, individuals are discouraged from donating to or associating with a group out of fear of retaliation for expressing dissident views. Consequently, organizations facing subpoenas suffer an ongoing injury to their First Amendment rights and can challenge those subpoenas in federal court.
This ruling has far reaching consequences. As the Supreme Court recognized, state officials “across the political spectrum” have routinely “issued subpoenas and other investigatory demands in order to” harass and chill the advocacy of groups that they dislike. Organizations that are the targets of politically motivated subpoenas now have a powerful tool to combat this unconstitutional treatment at the hands of state officials, especially if the subpoenas, or threatened subpoenas, target their donor information. Organizations no longer need to rely on challenging these subpoenas in state court and can freely exercise their First Amendment rights without fear of reprisal.
