backThe Supreme Court just gave recipients of government subpoenas, civil investigative demands, and other legal process a new and potentially powerful tool for responding to those investigative demands, especially if those demands burden speech, association, or other federally protected rights. In First Choice Women’s Resource Centers v. Davenport, the Supreme Court held, 9-0, that a subpoena demanding sensitive donor information inflicted a present First Amendment injury sufficient for Article III standing, even though no state court had yet ordered the recipient to comply.
The Decision
The case arose from an investigation by the New Jersey Attorney General into First Choice Women’s Resource Centers, a religious nonprofit that provides counseling and resources to pregnant women and does not provide or refer for abortions. After creating a “Reproductive Rights Strike Force” and issuing a consumer alert about organizations allegedly providing false or misleading abortion information, the Attorney General served First Choice with a subpoena demanding, among other things, names, phone numbers, addresses, and places of employment of donors to the organization. The subpoena, like most, warned that failure to comply could expose First Choice to contempt and other penalties.
First Choice sued in federal court under 42 U.S.C. § 1983, alleging that the Attorney General’s demand for donor information violated the First Amendment by chilling donors’ willingness to associate with the organization. The district court dismissed the case, and the Third Circuit affirmed, reasoning that First Choice had not yet suffered a justiciable injury because no state court had compelled compliance with the subpoena. The Supreme Court reversed, holding that the injury occurred when the demand was made and persisted while the subpoena remained outstanding. (The Court decided only the question of standing. It did not decide whether the subpoena did or didn’t comply with the First Amendment.)
Justice Gorsuch’s opinion for the unanimous Court rested on two primary rationales.
First, the Court reasoned that a request for disclosure can burden associational rights as much as a subsequent production of that information. The Court cited decisions such as NAACP v. Alabama and Americans for Prosperity Foundation v. Bonta, which recognized that privacy in association is often essential to preserving political, religious, cultural, and other protected expression. And the Court reasoned, based on evidence in the record, that a demand alone could reasonably deter donors from associating with the organization and induce the organization to temper its protected advocacy, even before enforcement or production.
The Court also rejected the Attorney General’s argument that the subpoena was not “self-executing” and therefore incapable of causing injury before a court ordered compliance. The subpoena—again, like most—“commanded” compliance and threatened contempt if it was defied. Moreover, and as noted above, the mere request combined with the threat of enforcement can reasonably chill association and other protected First Amendment activity.
Implications for Businesses
For companies, the decision’s most immediate significance lies in timing and posture in the context of requests that implicate the First Amendment. Businesses that receive subpoenas, CIDs, or other investigative demands must decide quickly whether to comply, negotiate, move to quash, or litigate. Though judicial review is generally available in the context of a motion to quash or compel, those options may face practical hurdles. This is particularly true in the context of state agency requests that must be challenged in state court. But it can also be true in federal fora as well, where some early pre-enforcement challenges must be presented to the agency itself.
First Choice potentially changes that dynamic when responding to, or negotiating responses to, legal process. A recipient with a First Amendment challenge may have more leverage to narrow requests, seek confidentiality protections, limit categories of sensitive information, or resist demands that appear disproportionate to the stated investigative purpose. Regulators may respond by drafting investigative demands more carefully and articulating the need for sensitive information more precisely
First Amendment challenges have always been possible, for example, as a basis for a motion to quash. But First Choice gives recipients a stronger basis, in appropriate cases, to seek independent federal court relief. And it also allows companies facing state enforcers to present those arguments in a forum that may be more receptive to objections and less known to the enforcer.
What Companies Can Do Today
Companies that receive process from federal and state regulators implicating First Amendment interests (and potentially other constitutional rights) now have another option to consider. When legal process is served, the first questions need not be limited to burden, relevance, and privilege. Recipients should also ask whether the demand reaches constitutionally sensitive material; whether compliance could chill speech, association, participation, reporting, advocacy, or any other protected right; whether the demand’s stated rationale is a pretext to burdening such rights; whether the government has tied the requested information to a legitimate investigative need; and whether a federal forum may be available to challenge the request. Those assessments are especially important for companies that face demands concerning topics with political or expressive salience or hold sensitive customer, employee, member, donor, or partner information.
Of course, First Choice does not mean every subpoena is now vulnerable to immediate federal challenge. The Court addressed standing, not the ultimate merits, and it grounded its analysis in the subpoena’s effect on First Amendment associational rights. The relief First Choice may provide beyond the First Amendment context remains to be developed. Still, where a demand seeks sensitive information implicating speech, association, religious exercise, political activity, donor or membership privacy, editorial judgment, or other federally protected expressive interests, First Choice holds that a federal injury is complete, and it strongly suggests that federal-court relief should be available.
Conclusion
The thesis of First Choice is that an investigative demand is not merely a procedural step on the way to enforcement. In some circumstances, the demand itself can alter behavior and chill protected activity. It therefore inflicts immediate injury and can therefore create immediate litigation options.