In a unanimous decision, the Supreme Court today concluded that New Jersey’s demand for the complete donor list of a pro-life pregnancy center could be heard in federal court. In its ruling in First Choice Women’s Resource Centers, Inc. v. Davenport, the Court cited NTUF’s amicus curiae (“friend of the court”) brief on the matter, recognizing “[g]roups ranging from the American Civil Liberties Union to the National Taxpayers Union Foundation to the Church of Jesus Christ of Latter-Day Saints” have filed in the case to highlight the real First Amendment harms that come from compelled donor disclosure.
The state claimed it needed donors’ names and contact information so that the state could “contact a representative sample and determine what they did or did not know about their charitable giving.” This was after the New Jersey Attorney General signed a public letter of liberal state attorneys general decrying pro-life pregnancy centers such as First Choice. Regardless of the underlying policy dispute on abortion, this case was about whether groups can challenge demands for their donor lists by ideologically-opposed politicians.
Our brief highlighted the growing trend of “lawfare,” demanding donor lists as a means of intimidation and harassment, including against taxpayers. Our amicus brief focused on how important the First Amendment’s “exacting scrutiny” standard is for protecting donor lists of nonprofits from precisely this sort of legal-procedure harassment. We showed that even routine business regulation laws have been abused to demand donor lists. We warned that this case is part of a disturbing pattern of donor list demands in response to challenging government policies.
Justice Gorsuch, writing for the 9-0 Court, noted that Congress enacted section 1983 “with the express goal of ensuring a federal forum to citizens who claim that state actors have violated their constitutional rights.” That means that groups like First Choice don’t have to wait for the state to prosecute them when demanding a donor list. Instead, they can be in federal court if they face “a credible threat of enforcement,” as articulated in the 2014 opinion in Susan B. Anthony List v. Driehaus.
The chilling effect of threatened disclosure is real. When faced with the threat of compelled disclosure, prospective members decline to join, donors close their pocketbooks, and advocacy groups reconsider their speech in the future. State officials are using novel applications of otherwise unobjectionable laws to get the supporters of causes.
Today, the Supreme Court agreed, concluding
Since the 1950s, this Court has confronted one official demand after another like the Attorney General’s. Over and again, we have held those demands burden the exercise of First Amendment rights. Disputing none of these precedents but seeking ways around them, the Attorney General has offered a variety of arguments. Some are old, some are new, but none succeeds.
Therefore, the Supreme Court remanded the case back down to the District Court so that the pregnancy center can challenge New Jersey’s donor list demand.
The case is First Choice Women’s Resource Centers, Inc. v. Davenport, U.S. No. 24-781.