First Choice v. Davenport:  Nonprofit has standing to bring Sec. 1983 suit to block state subpoena of its donor list

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

            A nonprofit organization has standing to bring a Sec. 1983 suit to enjoin a state Attorney General’s subpoena of its donor list, because this chills the organization’s First Amendment association rights, the U.S. Supreme Court held April 29 in First Choice Women’s Resource Centers v. Davenport.

            First Choice is a religious nonprofit organization in New Jersey that provides counseling to pregnant women.  First Choice does not provide abortion services.

            The New Jersey Attorney General subpoenaed the names and addresses of First Choice’s donors.  The Attorney General alleged these donors might have been misled, in violation of the state Consumer Fraud Act, into giving money to First Choice, because they might have erroneously believed First Choice offered abortion services.

            First Choice filed a Sec. 1983 action in federal court seeking to enjoin the Attorney General’s subpoena. 

            First Choice claimed the demand for information about its donors violated its First Amendment rights because it discourages people from associating with First Choice in pursuit of political, social, economic, educational, religious or cultural purposes.

            First Choice claimed anonymity was “paramount” to its donors.  First Choice submitted declarations from donors who said they would have been less likely to give to First Choice if they had known their identities might become public.

            The District Court dismissed First Choice’s suit.  The court ruled that since no state court had yet ordered First Choice to produce the information, First Choice had not suffered any injury necessary for Article III standing.

            The Third Circuit affirmed.

Holding

            The Supreme Court reversed, in a unanimous opinion by Justice Gorsuch.

            “Since the 1950s, this Court has confronted one official demand after another like the Attorney General’s”, the Court said.  “Over and again, we have held those demands burden the exercise of First Amendment rights.”  

            For example, in NAACP v. Alabama (1958), the Court blocked the Alabama Attorney General from seeking the names of all NAACP members in the state, because this would chill the First Amendment right to associate.  That case emphasized the “vital relationship” between “privacy in one’s associations” and “freedom to associate”, the Court said.

            “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”, the Court said.

            This is particularly true for groups that hold “dissident beliefs” that are “disfavored by those holding the reigns of power”, the Court said.

            Subsequent opinions by the Court have reached similar conclusions protecting donor information.

            “Against this backdrop, the question before us all but answers itself”, the Court said.  “First Choice has established a present injury to its First Amendment associational rights.”

            The Court rejected the Attorney General’s claim there was no injury because the subpoena had not yet been enforced. 

            “[E]ven 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”, the Court said.

            The Court also rejected the Attorney General’s claim that no injury would occur if a state court entered a protective order preventing public disclosure of the donor list.

            Even without public disclosure, “[a]n official demand for private donor information is enough to discourage reasonable individuals from associating with a group”, the Court said.  “It is enough to discourage groups from expressing dissident views.”

            “Just ask yourself, would it have been an answer in NAACP v. Alabama if the State’s Attorney General promised to keep the NAACP membership rolls to himself?”

            Sec. 1983 was enacted with the express goal of providing a federal forum to citizens who claim state actors have violated their constitutional rights, the Court said.