The Supreme Court heard arguments yesterday in First Choice Women’s Resource Centers, Inc. v. Platkin, a fascinating case pitting free speech and pro-life advocacy against overbearing government.
The Daily Signal’s Fred Lucas sums up the background of the case: “New Jersey Attorney General Matthew Platkin claimed First Choice Women’s Resource Centers may have made misleading comments about abortion and issued broad subpoenas to force the group to provide donor information, along with other documents.” Those supposedly misleading comments pertained to First Choice’s presentation of its services, qualifications, and practices, and the subpoenas were broad enough to cover an entire decade’s worth of documents and donor records.
Platkin launched his probe in 2023. First Choice said, “He said he needed donor names and contact information so that he could ‘contact a representative sample and determine what they did or did not know about their charitable giving.’”
To me, that seems like a slam-dunk case of government overreach that violates the First and 14th Amendment rights of First Choice and its donors. Even the American Civil Liberty Union, which rarely protects the civil liberties of preborn Americans, filed an amicus brief on behalf of First Choice. Based on how oral arguments went, it seems the Court is inclined to hold that New Jersey overstepped.
Cutting right to First Amendment concerns, Chief Justice John Roberts asked Sundeep Iyer, chief counsel for the Attorney General’s Office, “Do you think there is a credible chilling effect from the state seeking full names, phone numbers, addresses, present or last known place of employment, of every one of their donors who gave through any means other than the one specific website?”
Well, when you put it that way…
New Jersey’s argument is essentially that its subpoenas were not “self-executing,” so, absent court enforcement, it was really just a request for information that would not chill speech. Even left-wing Justice Elena Kagan didn’t buy that. “What’s an ordinary person supposed to think?” she asked. “And what’s an ordinary person supposed to do based on what an ordinary person is supposed to think?” The answer is obvious: When an ordinary person receives a subpoena, they would assume compliance is required. Kagan added, “An ordinary person, one of the funders of this organization or any similar organization, presented with this subpoena and then told ‘but don’t worry, it has to be stamped by a court,’ is not going to take that as very reassuring.”
That would almost certainly discourage further donor activity.
Iyer eventually admitted that compliance would be the correct assumption given the wording of the subpoena: “It says that an individual who receives the subpoena is commanded to produce.”
Based on New Jersey statute regarding subpoenas, Justice Neil Gorsuch concluded, “Now I don’t know how to read that other than it’s pretty self-executing to me, counsel.”
With those exchanges, it seems the Court established that the subpoenas were indeed compulsory, contrary to New Jersey’s argument, and that there’s every reason to think that their broad application would chill free speech. But wait — there’s more!
Justice Clarence Thomas doesn’t often speak during arguments, but when he does, it’s virtually always to make a crucial point. “Did you have complaints that form the basis of your concern about the fundraising activities here?” he asked Iyer. In other words, was there any reasonable suspicion of wrongdoing that might have provoked these subpoenas?
Iyer responded, “We certainly had complaints about crisis pregnancy centers.” However, “We haven’t had complaints about this specific center.”
Thomas replied, “So, you had no basis to think that they were deceiving any of their contributors?”
Bingo.
“It was a fishing expedition,” said First Choice Executive Director Aimee Huber.
In short, this is part of the war on pro-life pregnancy centers the Left declared in 2022 after the Dobbs decision. Not that abortion zealots were nice before that, but when their legal fig leaf was removed, they had to step up their attacks.
As [checks notes] The New York Times reports, “New Jersey’s attorney general, Matthew J. Platkin, issued the subpoena in the year following the Supreme Court’s decision overturning Roe v. Wade. That ruling, Dobbs v. Jackson Women’s Health Organization, led states throughout the country to re-examine abortion access and put a spotlight on centers like First Choice.”
“Spotlight” is a cute euphemism for lawfare, but kudos to the Times for at least acknowledging that there’s a game here. Let’s hope the Supreme Court does indeed put a stop to intimidation by subpoena and allow pro-life centers to continue their invaluable life-saving work.
