“Really?”

That’s perhaps the best response to the arguments advanced by the State of New Jersey at oral argument before the U.S. Supreme Court in First Choice v. Platkin. And that’s not a personal reaction – that was Justice Barrett, caught responding in exasperated disbelief to an answer provided by New Jersey’s counsel in a colloquy with Justice Kagan.

First Choice should be a simple case. The attorney general of New Jersey issued a subpoena for First Choice’s donor list. That’s not a friendly ask – the attorney general of New Jersey has made plain his disgust with crisis pregnancy centers in general and First Choice in particular.

Donor privacy, in turn, is protected by the First Amendment. That right was firmly established by the Supreme Court in NAACP v. Alabama in 1958, when it held that the Constitution prohibited a virtually identical demand for the NAACP’s funders by the then-segregationist government of Alabama.

Under 42 U.S.C. § 1983, when a plaintiff alleges a deprivation of a constitutional right under color of law, they get access to a federal court to make that argument. But New Jersey has spent years trying to keep First Choice’s case from reaching the docket of a federal judge – it would much prefer to litigate this question on its home turf in the well of a New Jersey state court.

When you consider how poorly the NAACP was treated by the Alabama courts in the 1950s and 1960s, it makes you realize just how important access to a life-tenured, disinterested, federal judge can be in lawfare cases like this one. Given those stakes, perhaps it’s no surprise that dozens of organizations, including People United for Privacy Foundation and Washington Legal Foundation, filed friend-of-the-court briefs supporting First Choice.

Up against cornerstone precedent, a mighty fleet of amici, and the United States of America itself (which filed a brief in support of First Choice), counsel for New Jersey tried in vain to claim that this case about a core federal right didn’t belong in a federal court. The general response from the Supreme Court to those efforts was often more verbose than Justice Barrett’s spontaneous incredulity, but it could largely be summed up as: “Really?”

A few interactions stood out in particular. New Jersey’s argument hinges on the theory that there’s no evidence that the government’s subpoena – “command[ing] [First Choice] to produce 28 different categories of documents, including every solicitation, e-mail, and text message it sent to its donors” and all “donor names, addresses, phone numbers, as well as places of employment” – chilled any donors or imposed any other harm to associational liberty.

Under questioning from Chief Justice Roberts and Justice Gorsuch, counsel for New Jersey claimed that First Amendment injury could be established through affidavits from donors who wished to remain anonymous. Of course, there are such declarations in the record. Just not ones good enough for the New Jersey attorney general. You see, those donors had only alleged that they might not have donated if they had known the state government would rap on First Choice’s door and demand their home address, but that didn’t evidence “prospective chill” to future First Choice donations.

An incredulous Justice Gorsuch asked if counsel seriously thought First Choice’s case should live or die “over the tense of a verb.” (Counsel for New Jersey eventually conceded that the State’s position was its subpoena, standing alone, could never impose the requisite constitutional harm.)

The question of what New Jersey wanted with the donor information was also raised by the Chief Justice. The State’s answer gave the game away. Taking the guise of fear of consumer deception (while later admitting “that we haven’t had complaints about this specific pregnancy center”), the government claimed that it merely wanted to contact those donors to ask if they were absolutely sure that they had really meant to make such a contribution. Considering the attorney general’s clear opposition to First Choice and similar groups, this seems far more like intimidation than an investigation.

New Jersey also attempted to reframe its subpoena as virtually voluntary – a kind of polite ask. How? Because the document is only the first step in ultimately securing a court order for the information requested. So, despite the document being labeled a subpoena and carrying with it warnings that non-compliance will bring about punitive state action, the harm is not complete until a court actually executes the demand. The State is just asking questions, you see.

This assertion drew out Justice Kagan, who scoffed that for “an ordinary person, one of the funders for this organization or for any similar organization presented with this subpoena” to “then [be] told ‘but don’t worry, it has to be stamped by a court,’ is not going to take that as very reassuring.” Counsel for New Jersey certainly shouldn’t have found that remark very reassuring – Justice Kagan has hardly been a lion for donor privacy on the Court, so it’s notable that she took the time to show her skepticism.

Another problem with New Jersey’s position is that it amounts to a Hobson’s choice of “state court or nothing.” As Justice Alito characterized it, the State’s “position is that they need to litigate this in state court, and until the state court rejects their First Amendment claim and orders compliance, they cannot go to federal court.” But it’s not as if First Choice can carry its claims through the state court system and then get its Section 1983 access to federal court on the backend.

As Justice Jackson forcefully noted, once First Choice’s state claim is heard on the attorney general’s home turf, First Choice will be precluded from raising its constitutional objection later on – under its theory, New Jersey has “made it impossible for them to make their claim in federal court.” Pro tip: It’s never a good sign for an advocate when a justice ventures that your proposed rule creates a Kafka trap.

A victory for First Choice will reverberate well beyond the walls of a small network of crisis pregnancy centers. Administrative subpoenas have been a widely abused tool for partisan and political lawfare by state attorneys general from both parties. And, while donor privacy is obviously front-and-center here, that abuse is hardly limited to just the donor privacy space.

In 2021, the attorney general of Texas hounded Twitter with an investigative subpoena into the platform’s content moderation decisions because he disagreed with Twitter’s decision to suspend President Trump’s account. Arguments like New Jersey’s kept that case out of federal court. In 2016, the attorney general of Massachusetts issued a similarly constitutionally invasive demand to ExxonMobil, asking for records of Exxon’s discussions with the AG’s ideological opponents. Exxon was likewise denied a federal forum to object, and that case is still ongoing in state court today, nearly a decade later.

Section 1983 provides a route for life-tenured judges, less sensitive to the prevailing pressures of the day, to separate out good faith investigative demands from the kind of abusive process that Twitter, Exxon, First Choice, and the Jim Crow-era NAACP experienced.

It’s a fool’s errand to try to predict votes based on one-off questioning at oral argument. But based on the significant skepticism that New Jersey’s presentation received before the Supreme Court, friends of the First Amendment should be cautiously optimistic about the outcome.