On April 29, the U.S. Supreme Court handed down a rare unanimous decision in First Choice Women’s Resource Centers, Inc. v. Davenport, holding that the New Jersey Attorney General’s subpoena demanding donor information from an anti-abortion nonprofit inflicted a constitutional injury sufficient to confer Article III standing—even before any state court moved to enforce it.
Case Summary
The case arose from a 2023 subpoena issued by then-Attorney General of New Jersey Matthew Platkin’s Reproductive Rights Strike Force, which commanded First Choice to produce 28 categories of documents, including the names, addresses, phone numbers, and employers of virtually all of its donors. First Choice filed a Section 1983 action in federal court, arguing that the demand chilled donor association and jeopardized its religious mission under the First Amendment. The Attorney General sought dismissal, arguing that First Choice lacked standing to bring the Section 1983 action because no state court had ordered compliance with the subpoena.
The District Court and a divided Third Circuit panel dismissed the federal action for lack of standing. But in a 9-0 ruling authored by Justice Neil Gorsuch, the Supreme Court reversed, holding that First Choice had a present injury to its First Amendment associational rights sufficient to confer standing in federal court. The Court reasoned that the subpoena’s demands for private donor information “inevitably” deter the exercise of First Amendment rights—not when enforced by a state court, but from the moment the subpoena is issued. The Court remanded without deciding the merits of whether the subpoena is ultimately unconstitutional, leaving that question for the District Court on remand.
Key Takeaways
While the merits of First Choice are yet to be decided, the decision’s impact on civil investigative demands could be significant. First Choice changes the landscape for any state civil investigation that demands sensitive associational, donor, membership, political, religious, or advocacy information, or that otherwise implicates federal constitutional rights.
Clients facing civil investigative demands from state attorneys general now have a basis to bring an immediate Section 1983 challenge in federal court without waiting for a state court to weigh in. This gives defendants the option to challenge an investigative subpoena in a new venue. Further, and perhaps even more importantly, it strengthens defendants’ ability to negotiate the scope of an investigative subpoena (even without ever filing a federal challenge).
Clients who receive a civil investigative subpoena should promptly discuss with their attorneys whether the requested materials include any information that could chill constitutional rights and implicate the First Choice decision.
To further discuss the impact of the First Choice decision on your company or operations, please reach out to Lowenstein Sandler’s White Collar Defense Group.
