The First Amendment wins a Supreme Court smackdown
by Thomas Jipping and J. Marc Wheat · The Washington TimesOPINION:
Some legal principles are so basic that a question based on them “all but answers itself.”
That was exactly what the Supreme Court said last month when it allowed a pro-life resource center to challenge a draconian subpoena from the New Jersey attorney general demanding information about its donors.
The justices were united. Groups on the political left and right filed briefs supporting First Choice Women’s Resource Centers Inc. The only one who did not seem to get it was a former New Jersey attorney general.
First Choice Women’s Resource Centers Inc. is a religious nonprofit organization that has provided counseling and resources to pregnant women in New Jersey for more than 40 years. In 2022, New Jersey Attorney General Matthew Platkin formed a “Reproductive Rights Strike Force” urging people to file complaints about pro-life resource centers with the state’s consumer affairs agency.
Make no mistake: Mr. Platkin was determined to drive pro-life groups such as First Choice out of business. He issued a subpoena demanding 28 categories of documents (some with dozens of subcategories), including information that clearly identifies First Choice’s donors.
Mr. Platkin’s office planned to contact donors and pressure them to claim First Choice had somehow “misled” them about its mission and operations. His search-and-destroy mission, however, was about to run headlong into the First Amendment.
First Choice sued in federal court to block the subpoena. In its decision, the Supreme Court did not decide whether the subpoena was lawful but rather whether First Choice could challenge it at all.
That might seem to be a technical distinction, but it determines whether the courts have authority to consider the case.
Advertisement Advertisement
In order to have legal “standing” to sue, First Choice had to show that New Jersey had caused it legal injury that a court was equipped to address. No standing would mean no lawsuit, and groups such as First Choice would be sitting ducks for an attorney general with a political agenda.
The Supreme Court had long ago — and repeatedly — said the First Amendment provides much more protection than that. In NAACP v. Alabama, for example, another state attorney general demanded information about the NAACP’s members and agents in the state. In 1958, the Supreme Court unanimously held that the “deterrent effect” of a demand for such information can violate the First Amendment right to associate.
The court cited that case and nearly a dozen precedents since then holding the same thing, in support of its holding. It is no wonder Justice Neil M. Gorsuch, for the unanimous court, wrote, “Against this backdrop, the question before us all but answers itself.”
Groups on both sides of the political spectrum supported First Choice because they all value the rights protected by the First Amendment. Advancing American Freedom, for example, filed an amicus brief, joined by dozens of others, arguing that “even the threat of disclosure can chill speech and associational rights” and that government should not be allowed to “leap over the barriers erected by the Constitution.”
A brief joined by the national American Civil Liberties Union and its New Jersey chapter made a similar argument: A subpoena such as this “can create a First Amendment injury — chilling protected speech and association before the government lifts a finger.” A stopped clock, they say, is right twice a day.
Advertisement Advertisement
Mr. Platkin did not happen to get it wrong; he did so deliberately. This was not a close call or a constitutional gray area. In fact, just as many filed amicus briefs supported Mr. Platkin as complaints against First Choice: zero. The only brief supporting his politically driven attempt to intimidate those he disliked was the one he filed himself.
The Supreme Court decision last month was as complete as it gets. All nine justices joined a single opinion. There were no quibbles, tangents, asides, distinctions without a difference or opining just for the fun of it. That is how serious and fundamental the First Amendment’s protection against government power must remain.
• Marc Wheat is the legal counsel at Advancing American Freedom Foundation. Thomas Jipping is a senior legal fellow at the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom Foundation.