With First Choice Women’s Centers V. Davenport, The Supreme Court Managed To Do At Least One Helpful Thing: Further Protect Anonymous Speech

Shortly before the Supreme Court inflicted enormous damage on the Voting Rights Act, the Reconstruction Amendments of the Constitution, any pretense of constitutionally guaranteed Equal Protection, the civil rights movement, its credibility, and our democracy writ large with its Alito-penned decision in Louisiana v. Callais, it released a separate decision in First Women’s Choice Resource Centers v. Davenport.

In terms of overall substance, this latter case was one where an anti-choice plaintiff got a win, which perhaps is why there was little trouble in the Court reaching a unanimous result in its favor. But it is just a procedural win, allowing its case to go forward, rather than a judicial validation of its actual viewpoint. (“This case presents a narrow question. We are not asked to decide the merits of First Choice’s federal lawsuit, only whether it may proceed.” [p. 5]). And, more importantly, it is a strong First Amendment win, with language that will be useful in later cases, including ones where more liberal positions have been impacted by government overreach. (“We have recognized […] that associational rights carry
special significance for political, social, religious, and other minorities. With the freedom to associate, minorities can ‘show their numerical strength,’ influence policy, and ‘stimulate competition’ in the marketplace of ideas. But take that freedom away and ‘dissident expression’ stands particularly vulnerable to marginalization or outright ‘suppression by the majority,’ leaving all of society poorer for it.” [p. 7]). And it will be useful in cases in federal and state courts all over the country, where it is binding precedent, and not just at the Supreme Court, which can blow with the wind depending on whose case is before it.

In other words, it is a decision that is likely to matter, and in a way that is good news for the First Amendment and the rights it protects, particularly with respect to associative freedom, the anonymity such expressive relationships depend on, and the standing needed to be able to challenge government intrusions on either, including by way of subpoenas.

In this case the plaintiff, First Women’s Choice Resource Centers, Inc., is what is sometimes referred to as a crisis pregnancy center. Despite the plaintiff’s name invoking “choice” such places are not about informing pregnant women about the full range of choices available to them. They instead steer them towards avenues that do not include the medical care needed to potentially terminate their pregnancy. The issue however is not that those running these centers don’t wish to support abortion but that they may be deceptively ensnaring vulnerable women who think they are getting more comprehensive advice about their choices than the limited information these centers offer, which has led some states, like New Jersey, to investigate whether they are indeed duping people.

But in this case New Jersey—the defendant in this case—as part of its investigation tried to subpoena the plaintiff for names of its donors (“Effectively, that demand required First Choice to provide personal information about donors who gave through two other websites, through the group’s various social media pages, by mail, in person, or by any other means.” [p. 2-3]). The stated rationale for seeking this data was to ensure that no donor had similarly been deceived as to the services the plaintiff delivered. [p. 3]. The plaintiff’s attempt to avoid the subpoena led to litigation in both state and federal courts, with the state seeking to enforce the subpoena in the former and the plaintiff bringing a civil rights lawsuit in the latter, alleging that the subpoena violated its First Amendment rights.

A federal law—42 U. S. C. §1983—authorizes suits against any person who, under color of state law, deprives another of his federal constitutional rights. First Choice filed a complaint under that statute, arguing, among other things, that the Attorney General’s demand for information about its donors violated its First Amendment rights. Specifically, First Choice observed that the First Amendment “prohibits the government from discouraging people from associating with others” “in pursuit of many political, social, economic, educational, religious, and cultural ends.” And, First Choice alleged, the Attorney General’s subpoena had just that impermissible effect. For its donors, the group represented, “anonymity is of paramount importance,” and its inability to guarantee that anonymity in the face of the Attorney General’s demands injured the group by discouraging donors from associating with it. [p. 3-4]

The federal district court dismissed the suit, largely on the grounds that because the state litigation had not yet resulted in the subpoena being enforced the plaintiff hadn’t suffered an injury it could sue over, [p. 4-5], and the Third Circuit upheld the dismissal. [p. 5]. With this decision, however, the Supreme Court has now allowed the federal lawsuit to go forward, finding that the plaintiff indeed has the standing to challenge how the subpoena affects its First Amendment rights.

“Standing” has to do with whether a party is eligible to bring a certain lawsuit. Courts can only hear legitimate “cases and controversies,” [p. 5], and standing helps ensure that the litigation put before it meets that criteria by ensuring that the parties bringing it are entitled to. [p. 5-6]. They are only entitled to if they have an “injury in fact,” caused by the defendant, and the litigation is capable of redressing it. [p.5].

This case focused on whether the injury-in-fact element was satisfied. [p. 6]. It can only be satisfied when the litigation involves “an injury that is concrete, particularized, and actual or imminent.” [p. 6]. And here the Court found that there was such an “actual and ongoing” injury, caused by the subpoena itself. [p. 6]. In fact, even though the state litigation had not yet resulted in the subpoena being enforced made no difference; it was the very existence of the subpoena that was so chilling to the plaintiff’s First Amendment rights. (“Even if a subpoena targeting First Amendment activity is never enforced in court, [it] will give its targets a very good reason to clam up [and] give the target organization’s members and supporters a very good reason to abandon the cause.” [p. 12]).

The reason is that the plaintiff is allowed to hold its anti-abortion views. And others who share those views are allowed to associate with the plaintiff, including by giving it support. But if those others had to fear the government showing up at their door to discuss their views, they would be reluctant to continue their association with the plaintiff. And that reluctance would result in harm to the plaintiff, now unable to associate with others as freely as they should have been able to and would have been able to if the subpoena had not given rise to the fear that their donors’ identities would be discoverable by the government.

Finally, consider First Choice’s two unrebutted declarations. In the first, several donors represented that “[e]ach of us would have been less likely to donate to First Choice if we had known information about the donation might be disclosed” to the Attorney General. The donors added that they submitted their declaration anonymously because they feared what they called the Attorney General’s “record of hostility toward pro-life groups.” I the second declaration, First Choice’s executive director stated that the Attorney General’s demand threatened to “weaken [the group’s] ability to recruit new donors . . . as prospective partners would be hesitant to risk the revelation of their personal information through government investigation.” All this is more than enough to establish injury in fact under our precedents. An injury in fact does not arise only when a defendant causes a tangible harm to a plaintiff, like a physical injury or monetary loss. It can also arise when a defendant burdens a plaintiff ’s constitutional rights. […] All this occurs not just when a demand is enforced, but when it is made and for as long as it remains outstanding. [p. 11-12]

As the Court reminded, associative freedom is protected by the First Amendment.

The First Amendment guarantees all Americans the rights to speak, worship, publish, assemble, and petition their government freely. Each of these rights, this Court has “‘long understood,’” necessarily carries with it “‘a corresponding right to associate with others.’” […] Appreciating all this, we have held that government actions tending to “curtai[l] the freedom to associate” warrant “the closest scrutiny” under the First Amendment. […] We have also held that “compelled disclosure of affiliation with groups engaged in advocacy” can “constitute a[n] effective . . . restraint on freedom of association.” [p. 6-7]

As is the anonymity that expression, including associative expression, often requires.

[In NAACP v. Alabama we observed] the “vital relationship” between “privacy in one’s associations” and the “freedom to associate.” 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. [p. 8]

[…]

Since NAACP v. Alabama, we have faced many cases along similar lines. In them, one state authority or another has demanded private donor or member information. And in one case after another we have subjected those demands to heightened First Amendment scrutiny. Throughout, we have emphasized the critical role “‘privacy in . . . associatio[n]’” plays “‘in preserving political and cultural diversity and in shielding dissident expression from suppression.’” We have acknowledged, too, that demands for private donor information “inevitabl[y]” carry with them a “deterrent effect on the exercise of First Amendment rights.” [p. 9]

Yet here was a subpoena now threatening both.

Each of these strands tightens the braid into one conclusion. From its allegations and declarations, and given our many and longstanding precedents in the area and reasonable inferences about third party behavior, First Choice has established that the Attorney General’s demand for private donor information injures the group’s First Amendment associational rights. [p. 13]

It is conceivably possible that on remand the lower courts might find the rationale behind the subpoena “’sufficient to justify the deterrent effect’ associated with the disclosure demand, [p. 8], and narrowly-tailored enough, [p. 10], such that there was in fact no actual intrusion on the plaintiff’s First Amendment rights stemming from its issuance. This decision by the Supreme Court does not resolve the question; it only determined that the question could be brought before the courts. But the same analysis that allowed the Supreme Court to identify a likely constitutional injury, enough for the plaintiff to be able to bring the case before the courts to seek a remedy, may yet be employed to find there indeed was an injury that requires redressing—here, by quashing the subpoena.

But regardless of what ultimately happens to the plaintiff’s case, this decision by the Supreme Court has broader implications. First, it doubles-down on prior precedent protecting freedom of association and the anonymity it depends on, and second—and perhaps more practically—it directly ties these First Amendment interests to the discovery instruments propounded by government actors, often too casually, seeking to unmask people. It makes clear that the intermediaries receiving these unmasking demands have their own cognizable First Amendment rights in being able to preserve the anonymity of those who associate with them, with the standing to challenge when those rights are trampled. And although this case addressed organizations and their donors, it is but a small analytical step to apply the same or similar reasoning to Internet platforms seeking to protect the identities of their users from seeking to unmask anonymous speakers, especially in concert with McIntyre v. Ohio Elections Commission, regarding the First Amendment protection for anonymous speech, and Moody v. NetChoice, regarding the First Amendment’s protection of platforms’ editorial and associative discretion. Per this decision, those unmasking attempts can amount to a constitutional injury to the platforms themselves, which they now have compelling new precedent to use to fight them.