First Choice Women's Resource Centers, Inc. v. Davenport

When the New Jersey Attorney General served First Choice Women’s Resource Center with an investigative subpoena seeking extensive categories of data, including the identities of its donors and employees, First Choice went to federal court to defend its First Amendment right to maintain the anonymity of its supporters. But the district court and the Third Circuit both turned away the suit—not because compelled disclosures don’t potentially violate the Constitution, but because, as New Jersey’s AG argued, the subpoenas were “non-self-executing,” and any injury to First Choice and its donors’ rights would come only when a state court issued an order enforcing the subpoenas on penalty of contempt.

Joined by the ACLU and the ACLU of New Jersey, FIRE argued what should be common-sense: A state demand for information on a nonprofit’s donors can chill speech by deterring potential donors, and federal courts must be open to hear the target’s case. State attorneys general both Democratic and Republican have increasingly sought to use indirect tools like investigative demands to chill speech they disagree with, using procedural maneuvers to keep federal courts from stepping in. New Jersey might be targeting anti-abortion advocacy, but these tactics are just as effective in the hands of a Florida AG investigating clubs hosting drag shows. But longstanding precedent makes clear that any use of government power to discourage expression violates the First Amendment, and getting clever with the form doesn’t insulate the state from judicial scrutiny.