People United for Privacy Foundation has joined an amicus brief before the U.S. Supreme Court with the Manhattan Institute, Institute for Free Speech, Texas Public Policy Foundation, and the Animal Activist Legal Defense Project supporting litigation challenging an investigatory subpoena demanding sensitive donor information from First Choice Women’s Resource Centers, a faith-based pro-life pregnancy center in New Jersey. The Attorney General of New Jersey issued an investigatory subpoena against First Choice, invoking a novel consumer protection theory to seek expansive disclosure of sensitive internal information from First Choice about its donors, advertisements, personnel, and allied relationships. First Choice is represented by attorneys at Alliance Defending Freedom and appealing the subpoena to the U.S. Supreme Court.

Government officials in both parties have been increasingly issuing investigatory subpoenas as an intimidation tactic to compel disclosure of sensitive donor information from advocacy nonprofits in contentious litigation. In 2022, the U.S. Department of Justice demanded donor information from Eagle Forum of Alabama, an organization that opposes gender-altering surgeries on children. Late last year, attorneys defending Texas’s anti-abortion statute filed a subpoena demanding a local abortion fund reveal their donors and volunteers.

The amicus brief in In Re: First Choice Women’s Resource Centers Inc., alludes to the recent trend of investigatory subpoenas for donor information by demonstrating how the tactic burdens nonprofit advocacy and associational privacy. Citing relevant precedent from AFPF v. Bonta, the brief explains:

It is no wonder why compelled disclosure is used frequently: this form of indirect regulation is intimidating and effective. “Broad and sweeping state inquiries” into “a person’s beliefs and associations” —areas protected by the First Amendment— “discourage citizens from exercising rights protected by the Constitution.”

The brief continues:

An organization that is compelled to disclose its donors, members or volunteers will have serious difficulties garnering donations, members, and volunteers. But the harm to First Amendment rights occurs before disclosure is required by a court. The threat of disclosure, coupled with a risk of enforcement, chills First Amendment rights and ripens a First Amendment claim.

At issue in the appeal to the U.S. Supreme Court is whether the judiciary can only intervene after the subpoena has been enforced. That would require First Choice to first disclose their donors to the New Jersey Attorney General and then seek judicial relief. Once disclosed, those donors may face harassment or worse, and First Choice may suffer irreparable damage before the courts can act. And, of course, the chilling effect of the subpoena itself violates the First Amendment. For these reasons, PUFPF and our fellow amici are asking the court to preemptively enjoin the subpoena demand.

Absent judicial intervention, compelled disclosure will remain an attractive tool for politically motivated government officials to silence and harm their critics. PUFPF will always defend the privacy rights of nonprofits and their members and supporters, regardless of their views.