People United for Privacy Foundation filed an amicus brief with the U.S. Supreme Court in First Choice Women’s Resource Centers, Inc. v. Platkin. The case, which will be heard in the Court’s upcoming Fall 2025 term, could produce the most significant Supreme Court ruling concerning the privacy rights of nonprofit members and donors in several years.

The case arose after New Jersey Attorney General Matthew Platkin issued a subpoena to First Choice seeking access to the nonprofit’s donor list, among other sensitive information. First Choice challenged the subpoena in federal court, arguing that its members have a First Amendment right to privately associate with the group. Despite strong Supreme Court precedents upholding donors’ right to privacy, the district court dismissed the case, reasoning that only state courts may enforce or quash a subpoena. That dismissal was upheld by the Third Circuit, which ruled that First Choice’s affidavit did “not yet show enough of an injury” to enter federal court.

PUFPF’s brief warns that the Third Circuit and other lower courts have effectively defanged Supreme Court precedents protecting nonprofit donor privacy. In the 2021 case Americans for Prosperity Foundation (AFPF) v. Bonta, the Court clarified that states carry the burden of showing a need to identify a nonprofit’s members and supporters. By requiring plaintiffs to demonstrate that disclosure will harm their members or organizations – as the Third, Sixth, and Ninth circuits have since done – lower courts have reversed the burden and contradicted the Court’s analysis.

First Choice Women’s Resource Centers, Inc. v. Platkin offers an important opportunity for the Justices to halt this concerning trend and restore the freedoms protected in AFPF, as well as earlier cases, such as Buckley v. Valeo (1976) and NAACP v. Alabama (1958). PUFPF’s brief, which was co-authored by former Federal Election Commission Chair and BakerHostetler Partner Allen Dickerson and Associate Caleb Acker, explains:

“Requiring organizations to demonstrate specific risk to their donors, rather than forcing the government to carry its burden, will inevitably chill civic participation. After all, no donor can predict the future; the favored organization today may be the dissident tomorrow.

The Constitution does not condition the freedom of association on individuals’ willingness to future-proof themselves against changing political winds. Nor does it require donors to risk even harmless disclosure because of official curiosity. This Court should emphasize that demands for membership or donor information are presumptively unconstitutional, and subject to exacting scrutiny, in all cases.”

The mere demand for a nonprofit’s donor list is a constitutional injury worthy of review: “After all, a demand backed by the coercive power of the state is always chilling. Government action without ‘sanction’ is ‘nothing more than advice or recommendation.’ There are no kind, gentle government demands, and a subpoena is necessarily understood to be more than a mere request,” the brief states.

If federal courts close their doors to nonprofits facing invasive subpoenas from state officials, nonprofit members will effectively lose the privacy protections the Court has repeatedly said are constitutionally required. Supreme Court review is urgently needed to resolve disagreements among circuit courts over how donor disclosure cases are evaluated.

Numerous nonprofits and civil liberties organizations are supporting First Choice’s fight for privacy at the Supreme Court. In addition, 18 states and the Arizona Legislature signed on to a brief filed by the state of Florida, which accuses Platkin of partnering with Planned Parenthood to harass anti-abortion pregnancy centers like First Choice through donor disclosure demands. If true, that’s a disturbing accusation and a short-sighted ploy, given that Republican elected officials elsewhere have shown a penchant for similarly targeting Planned Parenthood through subpoenas and other coercive practices.

PUFPF previously joined a diverse coalition of civil liberties groups in March 2024 to urge the lower courts to rule for donor privacy in the case. The Supreme Court will hear this important case in the fall.