SCOTUS Should Protect Organizations from State Subpoenas That Chill 1A Freedoms, ACLU Argues

Today, the Supreme Court will hear arguments in First Choice Women’s Resource Centers, Inc. v. Platkin about when organizations can ask federal courts to review state investigatory subpoenas that they claim chill their First Amendment rights. In September, the American Civil Liberties Union and the ACLU of New Jersey joined an amicus brief authored by the Foundation for Individual Rights & Expression (FIRE) in support of the right to seek federal relief.

“Even before they’re enforced, law enforcement subpoenas seeking sensitive donor information threaten to scare away supporters essential to any nonprofit’s work,” said Brian Hauss, deputy project director of the ACLU’s Speech, Privacy, and Technology Project. “At a time when government officials throughout the country abuse regulatory powers to punish their ideological opponents, federal courts must remain a venue in which people can vindicate their First Amendment rights.”

In 2023, New Jersey Attorney General Platkin issued subpoenas under the state’s consumer protections laws to First Choice Women's Resource Centers, a nonprofit that runs anti-abortion crisis pregnancy centers, seeking wide-ranging information including the identity of donors. First Choice challenged the subpoenas in federal court, arguing that the information sought chilled its First Amendments rights to speech and association. The Third Circuit dismissed First Choice’s claims, saying it could not assert its First Amendment rights in federal court until the state enforced the subpoena in state court.

“While the ACLU of New Jersey advocates for different policy outcomes than the plaintiff in this case, we are on the same page that investigatory subpoenas seeking sensitive information put all advocacy at risk,” said Jeanne LoCicero, legal director of the ACLU of New Jersey. “Federal court should remain open to anyone who believes their First Amendment rights are being violated, regardless of viewpoint.”

The FIRE/ACLU brief argues that law enforcement subpoenas seeking sensitive donor information threaten to chill protected speech and association, even before they are enforced. To ensure that these investigatory tools are not abused to retaliate against the ideological opponents of those in office, federal courts must promptly review claims that law enforcement subpoenas violate the First Amendment.

The amicus brief was filed in August. It can be read here.

This matter is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.