SCOTUS Tasked To Defend Donor Privacy: New Weapon Against Free Speech

RealClear Politics recently ran an op-ed co-authored by ALEC Judiciary Task Force Director Nino Marchese and ALEC Policy Manager and Manager of the Center to Protect Free Speech Rose Laoutaris focused on First Choice Women’s Resource Center v. Platkin, a case in front of the U.S. Supreme Court addressing the protection of free speech as the New Jersey Attorney General attempts to pierce the shield of donor privacy.

Free speech is the cornerstone of American democracy, and donor privacy is essential to protecting that freedom. The freedom to associate with and contribute to the causes of your choice – and do so privately – is a liberty which has emphatically been protected by the Supreme Court under the First Amendment. Yet the government continues to find ways to pry into private giving, which chills speech and intimidates Americans.

This October term, the Supreme Court will determine whether serving state-issued subpoenas that compel the disclosure of an organization’s donor list amounts to a constitutional violation. The American Legislative Exchange Council (ALEC), along with other voices across the ideological spectrum, say they do, and submitted amicus curiae briefs to the Supreme Court arguing so. In ALEC’s amicus brief, we shared our own experiences being the target of state investigatory actions, argued to defend First Amendment-protected liberties, and re-emphasized that federalism provides both state and federal forums to vindicate such constitutionally guaranteed rights.

First Choice Women’s Resource Centers – a faith-based health care and resource provider for pregnant women – became the subject of an investigatory subpoena issued by the New Jersey attorney general compelling the disclosure of their donor list. First Choice filed a federal lawsuit challenging the subpoena, claiming deprivation of their right to freely associate; however, the U.S. District Court for the District of New Jersey deemed the claim unripe as the subpoena had not yet been enforced by New Jersey. On appeal, the Third Circuit affirmed. Now, the Supreme Court will likely set a new precedent for First Amendment violations, organizational donor privacy, and the ripeness doctrine itself.

The District Court and Third Circuit’s preclusion of First Choice’s claim based on ripeness grounds is what makes this case particularly unique. The U.S. District Court ruled it didn’t have subject matter jurisdiction to hear the merits of First Choice’s suit, because the “… Plaintiff has yet to suffer any actual or imminent harm related to [the subpoena].” The central question in this case is whether legal harm exists. Should the simple issuance of an investigatory subpoena of this nature provide for a justiciable claim? Is there any actual or imminent harm suffered by such an investigatory subpoena? The answer to both is yes.

Read the full op-ed.