The next time someone suggests that they can predict the outcome of a Supreme Court case based on the parties involved, direct them to First Choice v. Davenport.

First Choice is a crisis pregnancy center, an unabashedly anti-abortion organization. It was represented before the Court by Erin Hawley, a pro-life advocate married to a powerful Republican senator. Jennifer Davenport is the Democratic Attorney General of New Jersey – an office that established a “Reproductive Rights Task Force.”

Last week, the Court ruled for First Choice – not on the 5-4 basis that overturned Roe v. Wade or the familiar 6-3 conservative/liberal ideological split. First Choice won unanimously. This Court isn’t composed of justices willing to bend the law to privilege their ideological friends or punish their political foes.

That’s not the most important fact about the First Choice decision, which is destined for legal textbooks as a hallmark First Amendment donor privacy case. But in these polarized and deeply cynical times, it’s worth noting nonetheless.

It’s hard to forecast exactly what First Choice means for First Amendment caselaw so soon after the decision. But through the fog-of-recent-opinion, two key principles emerge.

There’s no kindly request for donor information.

New Jersey contended that its subpoena for First Choice’s donor information did not raise any First Amendment concerns at all. This claim was essential to the AG’s case. If the Court agreed that there was no constitutional right at stake, First Choice would be barred from challenging the demand in federal court.

Echoing the skepticism Justice Kagan advanced at oral argument, however, a unanimous Court demolished the theory of the friendly, non-constitutionally invasive ask for donor information. The Court held that the “subpoena itself” imposed an “‘inevitable’ injury . . . to [First Choice’s] associational rights.” Any request for donor information inherently “burdens” First Amendment freedoms.

And that injury doesn’t rely upon the unique circumstances of the present moment, where doxing and threats to donor safety are on the rise. The First Choice Court expressly “[p]ut aside” the heightened risks “of harassment and reprisals . . . in the 21st century, where almost anyone with a computer can access information once it migrates to the public domain.” Instead, any “official demand for private donor information is enough to discourage reasonable individuals from associating with a group” and that, in turn, is enough to open the courthouse doors for a First Amendment challenge – full stop.

That’s huge. For decades, governments have tried to take the position that asking for donor information is constitutionally neutral. Only when the demand creates an unexpected risk of threats, harassments, or reprisals by the government or private parties, they argued, does the demand take on constitutional significance. The First Choice Court just “place[d] a tombstone on [that theory] no one can miss.”

NAACP v. Alabama is the norm, not the outlier.

The Court’s destruction of the kindly inquisitor model means that NAACP v. Alabama isn’t a one-off case. Governments that seek to pierce donor privacy often take great care to note the differences between their allegedly righteous demands and Jim Crow Alabama’s infamous treatment of the NAACP. But First Choice says there’s no difference in that distinction.

Justice Gorsuch’s opinion for the unanimous Court ripples with citations to NAACP v. Alabama and other cases from the civil rights era like Shelton v. Tucker and Bates v. Little Rock. Not to distinguish them, but to apply them as part of a continuum of First Amendment donor privacy caselaw that may begin in its “starkest form” with 1958’s NAACP v. Alabama but continues through Buckley v. Valeo (a 1976 campaign finance case) to Americans for Prosperity Foundation v. Bonta (a 2021 case on charitable giving).

In short, the First Choice Court gets it – to stop worst case scenarios down the line, governments must be prevented from sneaking a camel’s nose under the tent in the here-and-now. As the Court aptly summarized: “Strip away the ability of individuals to work together free from governmental oversight and intrusion, and the freedom to associate may become no freedom at all—individuals deterred, groups diminished, and their protected advocacy suppressed.”

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First Choice doesn’t sound the death-knell for all donor disclosure regimes. While the unanimous Court reinforced that demands must be “subjected . . . to heightened First Amendment scrutiny,” the Court didn’t spike the subpoena itself. It just said that First Choice pleaded sufficient First Amendment injury to be heard in a federal court.

But the First Choice Court still gave us a ruling far broader than it might have. It could have relied on New Jersey’s Reproductive Rights Task Force as evidence of official hostility against crisis pregnancy centers – and grounded the First Amendment injury there. It could have filled the 22-page opinion with throat-clearing “to be sure” statements discouraging the application of the NAACP line of caselaw to modern state governments. Or it could have emphasized the risk of threats and harassments in a world of hack-and-leak operations and doxing.

The Court didn’t do that. It saw this case as First Choice (and People United for Privacy Foundation) did: Freedom of association is a fundamental First Amendment right that can’t be “distinguished” away or dismissed.