9-0 Supreme Court Again Recognizes Disclosure Harms the Freedom of Association

The U.S. Supreme Court issued a unanimous opinion in First Choice Women’s Resource Centers v. Davenport recognizing the harm to First Choice Women’s Resource Centers and its donors from an investigatory subpoena issued by the New Jersey Attorney General.

Ensuring nonprofits are protected against such demands from state AGs was a core part of why we fought against a similar demand from California.

AFPF filed an amicus brief arguing that the case should be controlled by AFPF v. Bonta, in which Americans for Prosperity Foundation protected the privacy of its donors against a demand for blanket disclosure by the California Attorney General. AFPF established that the Right to Associate under the First Amendment requires mandatory donor disclosure schemes satisfy the “exacting scrutiny” standard. Exacting scrutiny requires “narrow tailoring” or a means-end fit between the compelling interest the government asserts and the method it employs to uphold that interest.

In First Choice, the AG sought to evade this rigorous test by arguing that the chill of First Choice’s donors was not the type of injury required to establish constitutional harm. The Supreme Court disagreed 9-0, holding that First Choice could challenge the subpoena’s constitutionality in federal court.

Case History

The long road to the Supreme Court began when First Choice challenged the subpoena in federal court, arguing that the First Amendment prohibits the government from discouraging people from associating with others in pursuit of political, social, economic, educational, religious, and cultural ends. The AG sought to enforce the subpoena in state court, leading to a conflict between state court and federal court that could have caused First Choice to lose the chance to have its federal constitutional case adjudicated at all.

The Court’s Decision

The Supreme Court was not asked to decide the merits of First Choice’s case but only the narrow question of whether it may proceed. On that question First Choice prevailed, with the Court holding that its “actual and ongoing injury to its First Amendment rights [caused] by deterring donors from associating with it” was sufficient injury to establish standing and get First Choice into federal court on its freedom of association claim.

The Court thus affirmed that under AFPF, the threat to donor privacy of government demands for disclosure is a constitutional injury that may be redressed. From a practical perspective, the case undermines state attempts to bypass AFPF through procedural maneuvering designed to delay adjudication of the freedom of association claim until it is too late to cure the injury. “First Choice brought this suit under 42 U. S. C. §1983. Congress enacted that provision with the express goal of ensuring a federal forum to citizens who claim that state actors have violated their constitutional rights.” That was enough for First Choice to carry the day and burnish AFPF’s protection of donor privacy.

Cindy Crawford is senior policy counsel at Americans for Prosperity Foundation, with a focus on the First Amendment.