September 9, 2025 • 41 mins
In First Choice Women’s Resource Centers, Inc. v. Platkin, the New Jersey Attorney General, Matthew Platkin, issued a subpoena to a faith-based, pro-life, nonprofit, requiring that it turn over years of sensitive information, including the names and contact information of its donors. First Choice Women’s Resource Centers, which provides free medical services and is funded by private donations, refused to comply with the demand for donor information, alleging that the subpoena chilled its rights of association and speech.
First Choice filed an action in federal court, but the district court twice dismissed the case, finding it "unripe" and requiring that the constitutional issues first be adjudicated in state court. The Third Circuit affirmed this decision.
On June 16th, 2025, the Supreme Court granted cert to consider whether, when the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, a federal court in a first-filed action is deprived of jurisdiction because those rights must be adjudicated in state court. This case addresses broader issues, including the power of state officials and the role of federal courts in protecting First Amendment rights from chilling effects caused by state action.
Featuring:
Erin M. Hawley, Senior Counsel, Vice President of Center for Life & Regulatory Practice, Alliance Defending Freedom
(Moderator) Prof. Teresa Stanton Collett, Professor and Director, Prolife Center, University of St. Thomas School of Law
First Choice filed an action in federal court, but the district court twice dismissed the case, finding it "unripe" and requiring that the constitutional issues first be adjudicated in state court. The Third Circuit affirmed this decision.
On June 16th, 2025, the Supreme Court granted cert to consider whether, when the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, a federal court in a first-filed action is deprived of jurisdiction because those rights must be adjudicated in state court. This case addresses broader issues, including the power of state officials and the role of federal courts in protecting First Amendment rights from chilling effects caused by state action.
Featuring:
Erin M. Hawley, Senior Counsel, Vice President of Center for Life & Regulatory Practice, Alliance Defending Freedom
(Moderator) Prof. Teresa Stanton Collett, Professor and Director, Prolife Center, University of St. Thomas School of Law
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to FEDSOC Forums, a podcast of the Federal Society's
practice groups. I'm Ny kas Merrick, vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock Forum programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society a virtual event.
Speaker 3 (00:22):
My name is Marco J.
Speaker 2 (00:24):
Lloyd, and I'm Assistant Director of Practice Groups to the
Federalist Society.
Speaker 3 (00:27):
Today we're excited to host the Courthouse Steps.
Speaker 2 (00:29):
Preview webinar on First Choice Women's Resource Center's le Platkin
featuring Aaron Hawley. Aaron serves as Senior counsel and Vice
President of the Center for Life and Regulatory Practice at
the Alliance Defending Freedom. Before joining ADF, Aaron practice depellate
law at several firms in Washington, d C. She also
(00:50):
worked at the Department of Justice, serving as counsel to
Attorney General Michael Mukazy. Aaron has litigated extensively before the
Supreme Court, as well as numerous federal appeals courts and
state courts of last resort. Our moderator for today's discussion
is Professor Teresa Stands and Collett Ffesserklett is a professor
at the University of Saint Thomas School of Law, where
(01:12):
she serves as director of the school's Pro Life Center.
A prolific scholar, Professor Clett has published numerous legal articles
and co authored books on professional responsibility and Catholic perspectives
on American law. Notably, she also served on the Pontifical
Council for the Family under Pope Benedict and Pope Francis
Pfesserklett has represented government officials and medical groups the significant
(01:35):
legal cases concerning abortion and printal rights for the US
Supreme Court and federal appellate courts. If you'd like to
learn more about today's speakers, their full bios are available
on our website atsok dot org. If you have a
question at any point today's program, please enter into the
Q and A function at boden vir zoom window.
Speaker 3 (01:54):
We will do our best to answer as man as
we can.
Speaker 2 (01:57):
Finally, I'll note that, as always, the Federalist Society takes
no position on particular legal or post policy issues, and
all of this person's opinion are those of the speakers.
With that, Professor thank you for joining us today in
the floor is yours.
Speaker 3 (02:11):
Thank you, Marco. This is a really important case for
lots of different reasons and has lots of interesting sort
of both constitutional and procedural questions. Aaron, why don't you
give our listeners and viewers just a thumbnail sketch of
the basic facts for us?
Speaker 4 (02:29):
Absolutely so, so I wanted to start today with our client.
Her name is Amy Huber. Amy Huber runs First Choice
Women's Resource Centers in New Jersey. It's a collection of
five locations that serve women and their families. And Amy
was actually in her dad's service or dad was a pastor.
She was sitting in the pew, i think the front
(02:51):
row when she was twelve years old and she heard
her dad give a sermon on life and she knew
at that moment that she wanted to stand for women,
to stand for unborn children. And again today she's the
executive director of five pregnancy centers in New Jersey that
are doing exactly that. These pregnancy centers don't charge. They
(03:11):
offer free resources, free pregnancy testing, free ultrasounds, free material
resources like car seats and baby clothes, those sorts of
things to New Jersey women. They have served about thirty
two thousand New Jersey women since they began, but this
unfortunately put them in the cross hears of iological opponents
(03:32):
of life. So New Jersey Attorney General Matthew Platkin has
made no secret of his animosity toward pregnancy care sinners.
Upon assuming office, one of his first things was to
establish what he called a Reproductive Rights Task Force that
was aimed at furthering abortion. As part of this, he
issued a consumer alert against pregnancy care centers. Again, it's
(03:55):
sort of strange that public enemy number one is pregnancy
centers who just try to help women when no one
else is there. But to a journey General Platkin, these
centers deserve a consumer alert. He actually sent this alert
to Planned Parenthood affiliates, got their input and thanked them
for their partnership on drafting this consumer alert against First
(04:17):
Choice and other pregnancy centers in New Jersey. But it
didn't stop there. He also signed an open letter with
other Attorneys general pledging to go after pregnancy senters, and
he made good on that threat when he issued an
invasive subpoena to First Choice. In that subpoena, he requested
up to ten years of internal information and documents. In addition,
(04:41):
and this is really astounding, but he requested not only
the names, but the contact information, the phone numbers, the addresses,
and the present and passpace of employment for all or most,
I should say, for most of First Choices donors, something
we think is absolutely protected by the Constitution.
Speaker 3 (05:00):
In this instance didn't. It's a non self executing and
b the trial court I believe, declined to enforce and
tell it was narrowed, and that you all are at
least in negotiations or at the state level on how
to narrow the subpoena? Is that correct?
Speaker 4 (05:18):
So not exactly so the Attorney General, I think it's
thirty six either thirty three or thirty six times. The
Attorney General and his brief and opposition notes that this
subpoena is non self executing, But that's really a red
hearing and it isn't actually true. The statute provides that
the failure to comply with the subpoena itself subjects First
(05:40):
Choice to penalties, including ultimately contempt. The subpoena itself warns
that the failure to comply with the subpoena might subject
First Choice to contempt, and the statute provision under which
the Attorney General issued a subpoena plainly says that the
subpoena has the force of Lawtorney General sort of waves
(06:01):
his hands and say, you know, this is just sort
of a friendly letter to First Choice. It doesn't have
any legal relevance, and that's simply untrue. Moreover, that analysis
is wholly irrelevant to the standing analysis. Even if the
Attorney General were correct about self executing, which is not.
(06:21):
What suffices for Article three standing purposes is that you
have a present injury. The court has held over and
over again that an objective chill is a present injury,
and First Choice's associational interest its relationship with those donors
are inherently chilled by this intrusive demand for their identities
(06:41):
and contact information.
Speaker 3 (06:43):
But in the absence of an order enforcing the subpoena,
the Attorney General argues that the case simply is not ripe,
and in fact prevailed at the lower court and the
Third Circuit, albeit in an unpublished opinion.
Speaker 4 (07:00):
That not ride so so two things the State court,
the state trial court, has actually enforced the subpoena. The
State Court found that the subpoena was valid and could
go forward and held it enforceable, which is kind of
inconvenient for the New Jersey Attorney General's argument. But in addition,
I think a little bit of a sort of procedural
(07:21):
background would be helpful here. So when First Choice received
that subpoena, it believed it to its constitutional protection applied
to its donor information. So contacted ADF we filed suit
on behalf of First Choice in federal district court alleging
that subpoena chilled these First Amendment rights. Well, the district
(07:42):
court said, sorry, as you said, Professor Collette, it's not
self executing. It hasn't been enforced yet. You can figure
this out in state court. In the meantime, the Attorney
General had moved to enforce the subpoena in state court.
But the problem with that first order, and that has
infected this entire case, is that under Section nineteen eighty three,
(08:07):
everyone including pregnancy centers, including the ACLU and the clients
it represents who actually filed an aneks free in support
of First Choice. Here, any person who is subjected to
unconstitutional treatment by state officials gets to go to federal court.
You don't have to wait for a state court to
enforce a subpoenam that's simply not required under section nineteen
(08:29):
eighty three. And the court sort of best case for
this is a takings case known as Nick. In Nick,
the court overruled a prior case called Williamson County, And
in Williamson County, the court had said, well, a takings claim,
you know, maybe it's not really complete until you haven't
gotten compensation. So just for this class of claims, just
(08:51):
for takings claims, you don't get to go to federal court.
You don't get to avail yourself of section nineteen eighty three.
You have to go to state court and have the
state court see you get compensation. But the problem with this,
of course, is a doctrine known as preclusion. So in
this case, in the Williamson County case, once these litigans
(09:11):
get sent to state court, they stay there because if
the state court decides an issue, a federal court almost
certainly cannot decide that same issue. So the lower course
opinions here really relegated first choice and plaintiffs like it
receiving these invasives agenas to state court forever, meaning that
Section nineteen eighty three just doesn't exist. For plaintiffs like
(09:33):
First Choice.
Speaker 3 (09:35):
Well, and that was observed in the descent on an
earlier Third Circuit opinion. I believe as well that the
preclusion trap was something that in particular, the New Jersey
Attorney General had utilized in other unrelated but nonetheless other
cases involving constitutional rights. So what's the practical effect if
(09:59):
the if you're relegated to state court, and if the
state court were to enforce a narrower subpoena as I
understand it, at least as argued by the Attorney General
and his brief to the US Supreme Court, what would
(10:19):
be sufficient evidence of chill that would get you the
reliefs that you needed.
Speaker 4 (10:26):
Sure, so a couple of things you've mentioned. The Attorney
General is narrowing at a subpoena a couple of times,
and I think it really is a clever litigation tactic.
On the eve of the oral argument in the Third Circuit,
the Attorney General sent a letter to First Choice and said, quote,
at this time, the Attorney General was no longer seeking
(10:47):
certain donor names and contact information. It was only seeking
other donor contact information and names. And we think that
doesn't moot the case for a variety of reasons. First,
that the attorneys has never concretely disavowed he still seeks
some donor names, and he reserved the right to seek
the donor names that he says he's a narrow the
(11:08):
subpoena about, so he's still seeking that constitutionally protected information.
And the court's cases are clear that federal courts are
not required to allow defendants return to their old bad
ways when on the nave of litigation a definant reforms
his behavior, if that behavior can happen again, As the
(11:28):
Attorney General expressly reserved the right to seek donor names again,
all of the donornames. He's unconditionally seeking some even now,
but he reserved the right to seek all that he
initially had. That the federal courts just just don't let
off defendants that easily.
Speaker 3 (11:45):
And in this instance, the claim or the relevance of
those donors' names to the Attorney General is to establish
that these donors weren't defrauded. Is that his basic argument.
Speaker 4 (11:58):
Yes, And he actually admitted in lower court pleadings talk
about a chill that he wants to contact these donors,
that this Attorney General, who is overtly hostile to pro
Life causes wants to reach out and contact First Choice donors,
which of course inherently chills those relationships with First Choice.
As the donors attested to in a declaration, the possibility
(12:22):
that their names might be disclosed to a hostile state
official makes them less likely to want to contribute to
First Choice and organizations like it. The Supreme Court has
been crystal clear that these associational rights are sort of
the bedrock of the First Amendment. The ability to gather
together is a precious and delicate freedom that allows us
to exercise all of our other rights. And in cases
(12:45):
like NAACP versus Alabama to Americans for Prosperity just a
few years ago, the Court has held that these rights
are so precious that even the possibility of a chilling
effect on them is enough to advance on the merits
of the case. But here First Choice wasn't even allowed
to get into federal court at all.
Speaker 3 (13:06):
Now, I noticed that this week the Solicitor General has
requested to participate in oral argument in this case, and
I believe you and your client have consented to that.
Part of the argument the Solicitor General makes for allowing
him to participate is that there are different standards in
(13:31):
some states between the enforcement of subpoenas by the courts
and enforcement in federal courts. Is that something that I
did not see that addressed in your cert petition, nor
did I see it addressed in the briefing until the
Attorney Solicitor General filed his request. Is that something that
(13:51):
you anticipate the court will take up or consider. I
think they will.
Speaker 4 (13:56):
And the reason being is that there's a Supreme Court
case called Riiseman. It involved a lawsuit by tax attorneys
who wanted to keep certain information privileged. And what the
court said in Riceman was those attorneys who were subject
to a federal court subpoena had an adequate remedy of law.
They could challenge that federal subpoena issued by the IRS
(14:20):
through an administrative proceeding. And this is really key. They
could end up in federal court if they followed through
with that administrative proceeding. That is precisely the opposite of
what happens to a plaintiff like First Choice. If First
Choice goes to state court and the state court decides
those issues, then that means that federal court review of
(14:42):
First Choices associational and other firstmen of claims will never happen.
So it's really key here when you're thinking about the
court's equitable discretion, which is what was involved in Riceman,
then an adequate remedy at law defeats equitable jurisdiction. So
in that case, in the federal subpoena case, the later
(15:05):
availability of a federal review combined with the present availability
of an adequate remedy sufficed. Here, of course, we have
Section nineteen eighty three, which says you get into federal court.
We never get into federal court, unlike the Reisman's plaintiffs.
If the Third Circuit is correct, well, and it's my A,
(15:26):
we're back to the preclusion problem. Yes, yes, But B
it's my understanding that you filed in federal court before
the Attorney General saw any sort of enforcement in the
state court.
Speaker 3 (15:38):
Is that correct?
Speaker 4 (15:39):
Absolutely, And that's a really important point here. There aren't
any abstention doctrines at play. Younger and other doctrines might
come into play if you had a state court enforcement
order or certainly a contempt order, But in this case,
a first choice filed suit in federal court before the
subpoena was due precisely because it was suffering a present
(16:00):
injury by the chilling of its First Amendment associational and
speech rights.
Speaker 3 (16:05):
Well, that's an important practice tip for those who are
listening to Ye again. So in preparing this case, I
noticed that there are several amicus briefs by organizations like
the Beckett Fund and First Liberty and Thomas Moore Society
(16:30):
and religiously affiliated special interscripts, if you will. Why is
that and our religious liberty questions interwoven? I didn't see
them in the briefing initially.
Speaker 4 (16:47):
So they're not presently interwoven in the jurisdictional inquiry, so
we're not at the merits. We did raise a free
exercise claim in the federal district court, but the issue
before the Supreme Court here is sort of a procedural one,
and that's where when you've alleged a objected chill to
your First Amendment rights, whether you get to go into
(17:08):
federal court under Section nineteen eighty three at all. But
I think the reason that you have so many religious
groups and frankly groups that idologically are very diverse from them,
fire that supports free speech rights. The ACLU lots of
folks the Buckeye Institution of file suit to make the
(17:30):
non ideological point that where you have a state official
that harasses and seeks constitutionally protected information, that state official
needs to be held accountable in federal court. That's what
Congress provided in section nineteen eighty three. So absolutely, if
you look at the sort of harassment of pregnancy sinners
(17:51):
since the Lencoln Dobbs, they have been especially targeted. But
this is a principle that applies to any civil rights plaintiff.
Speaker 3 (18:00):
So in the real world you lose. What's the harm
beyond your what's the strategy, what's the practice that you
fear would develop if it's not already present in the
areas of protection of human life, protection of religious liberty,
(18:25):
protection of parental rights? What's the real world consequences if
you lose? Sure, So I think.
Speaker 4 (18:36):
It means that for a certain class of plaintiff, you
don't get to go to federal court. And that's a
big deal. When Congress in section nineteen eighty three provided
a remedy for malfeasans by state and local officials, that
means that every civil rights plaintiff gets to go to
federal court. You can't carve off pregnancy centers or other
(18:59):
organizations and say, as the court did in Williamson County,
that we're just not going to hear certain sorts of
constitutional claims or certain sorts of constitutional claims raised by
certain plaintiffs. Congress of the exact opposite in section nineteen
eighty three, it says, any individual who is harmed by
a state action gets to file suit in federal court.
(19:21):
And the practical reality of why Congress did that, the
Reconstruction Congress did that. It's the same reason we have
diversity jurisdiction when you have a plaintiff from one state
and it defended from another state. The founders thought that
in Congress. The first Congress thought that it made sense
to have that heard in federal court in case you
(19:42):
might have a home court advantage in state court. So
the Reconstruction Congress and other Congresses have recognized that you
might have a sort of a home field advantage in
your own courts well.
Speaker 3 (19:56):
And I think it's in your briefing, although it may
have been in one of the AMEX brief What I
found to be a very simple and clear explanation to
particularly for folks that are listening that don't practice in
this particular area, but just find the case intriguing. Is
that if the third circuit is correct, what we may
(20:20):
have is authorization of hostile attorneys general doing all sorts
of fishing expeditions that would not be permissible in federal court,
that would not be permissible federal law, and that would
guarantee not only the imminent threat of harm, but the
real harm having to occur before any remedy would arise.
(20:43):
And if you're relegated only to state court. I know
in Minnesota here we had a period where there was
what they called a democratic trifecta all three branches, and
there was some legislation that was well, basically they got
any protection for pregnant women and unborn children in the
(21:04):
state by virtue of that. And so I can see
why that's a real concern that hostile attorney generals in
certain states will initiate almost immediately these sort of non
self executing documents, but then they will be received sympathetically
by the local courts that will have exhibit the same
sort of hostility to certain sort of civil rights that
(21:28):
are important. So talk to me about some of the
arguments that the Attorney General makes in the Supreme Court.
He begins with this argument that, well, this isn't even
a published opinion out of the Third Circuit, and therefore
it violates the traditional rules about the kind of cases
(21:51):
the Supreme Court takes. Now, I see nothing in the
rules of the Supreme Court that says that it's a
requirement that an opinion be public before the Supreme Court
will take up the issue. But what's your response to that?
Speaker 4 (22:06):
So, I think it's a testament to how wrong the
Third Circuit's decision is. I think the Attorney General is
correct that as a practical matter, the Supreme Court doesn't
usually grants from an unpublished two paragraph opinion. But neither
does the Supreme Court, and neither are the Federal Court
set up to make law good for one day in
(22:27):
one case only. And I think what hopefully caught the
Court's attention here is that a federal civil rights plaintiff
is being barred from federal court for a reason that
that doesn't relate to Article three standing. If you read
the Third Circuits opinion, it says, you know, maybe it's
not right. Maybe you know you can still go to
(22:49):
state court. We expect that you'll maybe get to federal
court later, though it doesn't explain how that would would
be possible given preclusion of principles. And so I think
the Supreme Court really saw through the Third Circuit's decision
here and said, despite that two paragraph procurement opinion, this
is an important issue, and every civil rights plaintiff, we
(23:10):
hope the gore will say gets to you Section nineteen
eighty three.
Speaker 3 (23:14):
The second argument, because as I recall, your reply brief
actually cites fairly recent cases where the Supreme Court took
up unpublished opinions. So I thought that was very well answered.
The second argument they make is that there's really not
a split in a circuit split. Now, again, my reading
(23:35):
of the Supreme Court rules and the Supreme Court cases
is while a circuit split certainly enhances your chances of
getting certain granted, it is not a prerequisite. You could
have a sufficiently horrendous case without a circuit split. That
the Court the case of the internment of the Japanese
and World. They took the case and it didn't get
(23:57):
rightly to side. But nonetheless, I can think of the
opinion that would be sufficiently bad that we're not going
to wait for a split of the circuits in order
for us to correct that. What is your response to
the claim by the Attorney General that there's no circuit split? Sure?
Speaker 4 (24:16):
So, so I think it's important to point out that
those arguments were the brief and opposition stage, so they
may be decent arguments as to why the Court would
consider granting search or not. You know, a circus split
usually is sort of an indicator that the Court needs
to get involved. But as you said, there are cases
(24:38):
where the decision below is just wrong and the Court
needs to review it. And once the Court has granted
a review, then the presence or absence of a circuit
split really doesn't matter to the merits. But as to
the Attorney General's specific argument as to a circus split,
there's clearly a one to one split one two. Now,
(24:58):
I guess we can say it's not super deep. But
the Ninth Circuit and Fifth Circuit have disagreed. The Third Circuit,
in its opinion below, appeared to join the Ninth Circuit
excuse me, the Fifth Circuit in holding that even if
you have a chill so basic Article three principles, if
you have a present injury, including an objective chill, then
(25:20):
that satisfies Article three standing. But what the Fifth Circuit said,
what the lower courts here said, is we're going to
add something to that. We're going to say that, you know,
a chill is not enough. Instead you have to have
a statecourt enforcement order. But of course then you probably
never get into federal court at all, which brings us
back full circle. The Ninth Circuit takes a different approach.
(25:43):
The Ninth Circuit said that a First Amendment chill can
indeed satisfy Article three and that's all you need. So
those cases absolutely diverge. But the more I think important
purpose or answer for present purposes is that under bedrock
Article three principles, a present injury suffices. Course, don't get
(26:05):
to add on to that.
Speaker 3 (26:08):
And I noticed the way you carefully characterized the Third
Circuit opinion, because as you noted, it's two paragraphs, so
there's not a whole lot of you know, we joined
this circuit and we think their analysis is better than
this circuits. In fact, there's none of that in the opinion.
Why do you interpret the Third Circuit as joining the
Fifth Circuit on this.
Speaker 4 (26:30):
For a couple of reasons. Several times it mentions ripeness
first and foremost, and then it mentioned several times that
it expects the state court to be fair. It mentions
the availability of state court review, and so the Third
Circuit was clearly contemplating that in order to ripen the case,
First Choice needed to go back to state court. It
(26:51):
also frankly upheld the lower court decision that held the
case was not ripe until it received an enforcement order
on pain of contact. But again, the lower courts don't
get to in graft additional requirements. As the Court has
said over and over as of late, the federal courts
have a virtually unflagging obligation to exercise the jurisdiction which
(27:12):
they've been given. They don't get to carve out pregnancy
care centers from Section nineteen eighty three.
Speaker 3 (27:19):
One of the listeners has asked a few years ago,
in Twitter versus Paxton, the Ninth Circuit dismissed, is not
ripe Twitter's effort to try to stop CIDs from the
Texas AG? Is the case distinguishable or is it just wrong?
Speaker 4 (27:35):
So we actually agree with the legal reasoning put forth
in Twitter, I think it's put note two. But in
the Twitter case, the court says that a objective chill
statisfies Article three and would make the case ripe. The
court there just didn't think that Twitter had in fact
alleged and objective kill a chill. I think they called
(27:57):
it bare factual allegation. Here, we of course have a
lot more than bare factual allegations. When you were looking
at the right of association. If you look at Americans
for Prosperity, if you look at the NAACP case from
the nineteen sixties fifties, you get the idea that this
(28:18):
associational right is inherently infringed by a disclosure demand. And
that makes complete sense when you are a nonprofit association
who is associating with donors who are contributing to your nonprofit,
and their names, addresses, and phone numbers are requested by
(28:38):
hostile state attorney general so you can get into contact
with them. That chills associational rights. So as the course
said in Americans for Prosperity Prosperity that that chill is reasonable,
it gets you exacting scrutiny, and it certainly gets you
into federal court. So short answer, we think that that
footnote that reasoning is correct, but that here there is
(29:00):
an objective.
Speaker 3 (29:01):
Chill, what kind of facts would justify given the hostility
and your brief I thought was extremely effective.
Speaker 5 (29:13):
Of evidencing the hostility, including graphic pictures of the various
things and the conduct of the age as a predicate.
Speaker 3 (29:24):
But what sort of facts, if any, in your opinion,
would allow attorney generals, especially if they perhaps suspected money
laundering through a charitable or fible one c. Three What
sort of Are there any facts that you think that
chill would not be sufficient? Or is that a merits
question more than a standing question.
Speaker 4 (29:46):
Absolutely, that's the merits question. So I think when you
have the shill, you're entitled to get into article you
have satisfied Article three, you're entitled to get into federal courts.
And then at that point, as the California Attorney General
argued Americans for prosperity, maybe there are good reasons that
you need particular donor names. I'm here the Attorney General
(30:07):
has never cited a single instance, a single complaint against
first choice. So we don't think that would be at
all satisfied. But it would be a merits question rather
than a standing one.
Speaker 3 (30:19):
And so at this point in time, have they set
the argument day yet they have not.
Speaker 4 (30:28):
We believe it'll be in December, but it has not
been set.
Speaker 3 (30:30):
Okay. And is there are there continuing proceedings in the
state court or have those basically been stayed pending resolution
of this Those have been.
Speaker 4 (30:46):
Stayed the Attorney General agreed to stay statecourt enforcement proceedings
during the tendency of the cert petition and then Maris
determinations by the Supreme Court, So those are not ongoing.
Speaker 3 (30:59):
And have any of your Have any discovery materials been
provided to the Attorney General at this point?
Speaker 4 (31:06):
Yes, First Choice has produced about I think twenty three
hundred pages of materials documenting the various things the Attorney
General requested again going back ten years, really invasive demands
from everything from training manuals to again the donor names.
But First Choice has not provided those donor names or
(31:28):
contact informations. Instead, it objected that those were constitutionally protected.
Speaker 3 (31:33):
Okay. And it was the training materials and some of
the internal memos as I recall that organizations like Beckett
First Celebrity were saying race not only the free speech,
the chilling effect, free association, but also free exercise concerns
because of the motivation which you described earlier. At this
(31:58):
point the questions of folks that have provided and so
if you have questions, are listening, I please let us
know so that we can be sure and address them.
So as you prepare for this, I'm sure you're going
to do several moods. And then how long would you
(32:20):
anticipate will this be one of the earlier decisions since
it is procedural in nature that we can anticipate the
court handing down, unlike some from last session that were
the very last day that we were all waiting on.
Speaker 4 (32:33):
So I think it depends. Like typically, the more hot
button issues do tend to be issued later in the
term because the justices are really debating them, going back
and forth on descends and concurrences and majority opinions at
the court. I'm here. We hope you know that you
always dangerous to predict the deal leaves, but we hope
(32:56):
very much that the Supreme Court will agree.
Speaker 3 (33:00):
You know with.
Speaker 4 (33:00):
Amiki on all sides of the ideological spectrum that regardless
of one's views on abortion, regardless of one's views on
pregnancy centers, that when you have an objective chill of
your First Amendment rights, you should be entitled to avail
yourself a federal court under section nineteen eighty three. So
we're hopeful that principle will not be controversial. But Boie
shall see it does.
Speaker 3 (33:23):
Except for the non self executing aspect, which you have suggested,
it's largely a red herring in this context. It does
seem to be a pretty clean procedural question with an
answer of yes or no, and not a terribly complex question,
although one should always be cautious about saying anything that's
(33:45):
in front of the three court and characterizing it is
not terribly complex.
Speaker 6 (33:49):
So Bud yes, and onely just to pick up on
the non self executing event, so you know, First Choice
here received a subpoena as them from the Attorney General's
office actually showed up at First Choice, requested to see
any humor, and handed it the subpoena that has the
course of law that says that she will be on
(34:10):
pain of contempt if she doesn't produce all of this material,
and it cites statutory provision that allow for the imposition
of penalties for the failure to quote obey the subpoena.
So even if you think that szebpena is not the
executing Again, I don't. But even if you think it's
non self executing, receiving that sort of subpoena would chill
(34:34):
objectively chill First Amendment rights of an organization like First Choice.
Speaker 4 (34:39):
So I think I really think that non self executing
is simply legally irrelevant. The question is whether receiving this
coercive government demand did that chill? Did it reasonably chill
first choices associational rights, regardless of what they're self executing.
It was the chill root Stambol and I think it
is when you get a sympone and word of the
(35:01):
way the New Jerseys is when it's backed up by
the force of law in another filing, and it's state
court contempt filing to enforce you me, yes, state court
action to enforce the subpoena. It actually said a New
Jersey turning General actually said that First One has already
violated all of these statutes. So you've got you've got
(35:24):
this massive enforcement proceeding taking place against First Choice. So
we think the chill is eminently reasonable.
Speaker 3 (35:31):
Now, this litigation has been going on for three years,
two years, okay, And this may be an improper question,
in which case you can just round at me and
we'll move right on. But have you has your client
seen a declining contributions out of fear.
Speaker 4 (35:51):
So the clients has submitted a donor declaration, and those
donor declarations do attest to that chill. Of course, standing
is assessed at the time the complaint is filed. But
donors have attested that they will be less likely to
donate because of the possibility that the Attorney general would
(36:12):
get their names as a hostile state official. So and again,
cases from the NAACP all the way through Americans for
Prosperity really hone in on both the importance of this
First Amendment right to associate anonymously, as well as how
sort of delegate those freedoms are. And a in Bantam
books that the mere threat of hostility, not backed up
(36:35):
by coercion was enough for a First Amendment harm. So
the court's cases have very much cited with the First
Amendment in these sorts of cases protecting it from harassment
and abuse by state officials.
Speaker 3 (36:51):
Well, and we know that historically, for example, any contribution
would have consequences outside of the hostile attorney general. I'm
thinking in particular of the marriage fight, where you had
the founder of a major computer programming company that was
(37:13):
essentially ousted over his position, and a donation that supported
traditional marriage in California. California has been particularly active, it
seems to me, in seeking donor information and in that
information and having all sorts of adverse consequences to those donors,
independent of whether they're legal actions by the Attorney General
(37:36):
or cultural actions or commercial actions by others, boycotts, etc.
What have I not asked you that I should have
asked you?
Speaker 4 (37:47):
Oh goodness, I think you've covered it all really well.
I guess one thing that's helpful to point out is
that there are two main theories that first choice is
advocate for binding standing. We've talked a lot about the
chilling factor under the First Amendments associational protections, but of
(38:09):
course the Supreme Court also permits pre enforcement review, and
so we think that there's also Article three standing under
cases like SBA list that say when you have a
credible threat of enforcement, then that itself is a harm.
That's actually what the Solicitor General the United States freef
focuses on, that there is a credible threat of a
(38:30):
future harm. Both the burdens of defending against that enforcement
and the possible content and production of those protected documents,
So really two different ways of getting to the same place.
Speaker 3 (38:43):
Actually, that pre enforcement challenge, I believe, was a doctrine
that emerged in A versus Planned Parenthood versus AO, and
I was counselor at the lower courts in that and
the Solicitor General introduced the idea and the court accepted.
It's the only unanimous opinion on abortion from the United
(39:03):
States Supreme Court ever, But it was this sort of
procedural concern that they could unify on it to uphold
the new Hampshire paril involvement law at that point in time,
so well pending other questions, I would like to thank
(39:24):
you very much, not only for the fact that you've
been so clear in explaining the position of your client
and helping us understand to a large degree the arguments
that are being made by the Attorney General in this case,
but also the fact that the Lies Defending Freedom was
willing to step up and help a nonprofit. My husband's
(39:45):
been in the nonprofit arena for decades, and the sort
of legal counsel that ADF provides is not the sort
of legal counsel that any nonprofit really can afford, it's
more superior, and so your client is lucky to have you.
(40:05):
So with that, I will close seeing, Oh, we have
one further perhaps one further question. Oh, please provide contact
information for Aaron and Teresa Collette. I can be contacted
through the University of Saint Thomas in Minnesota. Teresa dot
(40:29):
r T s C O L L E t T
at St. Thomas dot ed U. Aarin, are you in
a position to provide some contact information?
Speaker 4 (40:40):
Sure, you can just reach me at my email at
ADF E. Hawley h A W L E Y at
adf legual dot org.
Speaker 3 (40:49):
And with that we will thank our audience and thank
the Federal Society for giving us the forum to explain
the case so that people can understand it more clearly.
And I'll look forward to perhaps chatting again in December
after oral argument occurs. Perhaps, Thank you, Eric, Thank you.
Speaker 1 (41:09):
Thank you for listening to this episode of FEDSOC Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the Practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.
Welcome to FEDSOC Forums, a podcast of the Federal Society's
practice groups. I'm Ny kas Merrick, vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock Forum programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society a virtual event.
Speaker 3 (00:22):
My name is Marco J.
Speaker 2 (00:24):
Lloyd, and I'm Assistant Director of Practice Groups to the
Federalist Society.
Speaker 3 (00:27):
Today we're excited to host the Courthouse Steps.
Speaker 2 (00:29):
Preview webinar on First Choice Women's Resource Center's le Platkin
featuring Aaron Hawley. Aaron serves as Senior counsel and Vice
President of the Center for Life and Regulatory Practice at
the Alliance Defending Freedom. Before joining ADF, Aaron practice depellate
law at several firms in Washington, d C. She also
(00:50):
worked at the Department of Justice, serving as counsel to
Attorney General Michael Mukazy. Aaron has litigated extensively before the
Supreme Court, as well as numerous federal appeals courts and
state courts of last resort. Our moderator for today's discussion
is Professor Teresa Stands and Collett Ffesserklett is a professor
at the University of Saint Thomas School of Law, where
(01:12):
she serves as director of the school's Pro Life Center.
A prolific scholar, Professor Clett has published numerous legal articles
and co authored books on professional responsibility and Catholic perspectives
on American law. Notably, she also served on the Pontifical
Council for the Family under Pope Benedict and Pope Francis
Pfesserklett has represented government officials and medical groups the significant
(01:35):
legal cases concerning abortion and printal rights for the US
Supreme Court and federal appellate courts. If you'd like to
learn more about today's speakers, their full bios are available
on our website atsok dot org. If you have a
question at any point today's program, please enter into the
Q and A function at boden vir zoom window.
Speaker 3 (01:54):
We will do our best to answer as man as
we can.
Speaker 2 (01:57):
Finally, I'll note that, as always, the Federalist Society takes
no position on particular legal or post policy issues, and
all of this person's opinion are those of the speakers.
With that, Professor thank you for joining us today in
the floor is yours.
Speaker 3 (02:11):
Thank you, Marco. This is a really important case for
lots of different reasons and has lots of interesting sort
of both constitutional and procedural questions. Aaron, why don't you
give our listeners and viewers just a thumbnail sketch of
the basic facts for us?
Speaker 4 (02:29):
Absolutely so, so I wanted to start today with our client.
Her name is Amy Huber. Amy Huber runs First Choice
Women's Resource Centers in New Jersey. It's a collection of
five locations that serve women and their families. And Amy
was actually in her dad's service or dad was a pastor.
She was sitting in the pew, i think the front
(02:51):
row when she was twelve years old and she heard
her dad give a sermon on life and she knew
at that moment that she wanted to stand for women,
to stand for unborn children. And again today she's the
executive director of five pregnancy centers in New Jersey that
are doing exactly that. These pregnancy centers don't charge. They
(03:11):
offer free resources, free pregnancy testing, free ultrasounds, free material
resources like car seats and baby clothes, those sorts of
things to New Jersey women. They have served about thirty
two thousand New Jersey women since they began, but this
unfortunately put them in the cross hears of iological opponents
(03:32):
of life. So New Jersey Attorney General Matthew Platkin has
made no secret of his animosity toward pregnancy care sinners.
Upon assuming office, one of his first things was to
establish what he called a Reproductive Rights Task Force that
was aimed at furthering abortion. As part of this, he
issued a consumer alert against pregnancy care centers. Again, it's
(03:55):
sort of strange that public enemy number one is pregnancy
centers who just try to help women when no one
else is there. But to a journey General Platkin, these
centers deserve a consumer alert. He actually sent this alert
to Planned Parenthood affiliates, got their input and thanked them
for their partnership on drafting this consumer alert against First
(04:17):
Choice and other pregnancy centers in New Jersey. But it
didn't stop there. He also signed an open letter with
other Attorneys general pledging to go after pregnancy senters, and
he made good on that threat when he issued an
invasive subpoena to First Choice. In that subpoena, he requested
up to ten years of internal information and documents. In addition,
(04:41):
and this is really astounding, but he requested not only
the names, but the contact information, the phone numbers, the addresses,
and the present and passpace of employment for all or most,
I should say, for most of First Choices donors, something
we think is absolutely protected by the Constitution.
Speaker 3 (05:00):
In this instance didn't. It's a non self executing and
b the trial court I believe, declined to enforce and
tell it was narrowed, and that you all are at
least in negotiations or at the state level on how
to narrow the subpoena? Is that correct?
Speaker 4 (05:18):
So not exactly so the Attorney General, I think it's
thirty six either thirty three or thirty six times. The
Attorney General and his brief and opposition notes that this
subpoena is non self executing, But that's really a red
hearing and it isn't actually true. The statute provides that
the failure to comply with the subpoena itself subjects First
(05:40):
Choice to penalties, including ultimately contempt. The subpoena itself warns
that the failure to comply with the subpoena might subject
First Choice to contempt, and the statute provision under which
the Attorney General issued a subpoena plainly says that the
subpoena has the force of Lawtorney General sort of waves
(06:01):
his hands and say, you know, this is just sort
of a friendly letter to First Choice. It doesn't have
any legal relevance, and that's simply untrue. Moreover, that analysis
is wholly irrelevant to the standing analysis. Even if the
Attorney General were correct about self executing, which is not.
(06:21):
What suffices for Article three standing purposes is that you
have a present injury. The court has held over and
over again that an objective chill is a present injury,
and First Choice's associational interest its relationship with those donors
are inherently chilled by this intrusive demand for their identities
(06:41):
and contact information.
Speaker 3 (06:43):
But in the absence of an order enforcing the subpoena,
the Attorney General argues that the case simply is not ripe,
and in fact prevailed at the lower court and the
Third Circuit, albeit in an unpublished opinion.
Speaker 4 (07:00):
That not ride so so two things the State court,
the state trial court, has actually enforced the subpoena. The
State Court found that the subpoena was valid and could
go forward and held it enforceable, which is kind of
inconvenient for the New Jersey Attorney General's argument. But in addition,
I think a little bit of a sort of procedural
(07:21):
background would be helpful here. So when First Choice received
that subpoena, it believed it to its constitutional protection applied
to its donor information. So contacted ADF we filed suit
on behalf of First Choice in federal district court alleging
that subpoena chilled these First Amendment rights. Well, the district
(07:42):
court said, sorry, as you said, Professor Collette, it's not
self executing. It hasn't been enforced yet. You can figure
this out in state court. In the meantime, the Attorney
General had moved to enforce the subpoena in state court.
But the problem with that first order, and that has
infected this entire case, is that under Section nineteen eighty three,
(08:07):
everyone including pregnancy centers, including the ACLU and the clients
it represents who actually filed an aneks free in support
of First Choice. Here, any person who is subjected to
unconstitutional treatment by state officials gets to go to federal court.
You don't have to wait for a state court to
enforce a subpoenam that's simply not required under section nineteen
(08:29):
eighty three. And the court sort of best case for
this is a takings case known as Nick. In Nick,
the court overruled a prior case called Williamson County, And
in Williamson County, the court had said, well, a takings claim,
you know, maybe it's not really complete until you haven't
gotten compensation. So just for this class of claims, just
(08:51):
for takings claims, you don't get to go to federal court.
You don't get to avail yourself of section nineteen eighty three.
You have to go to state court and have the
state court see you get compensation. But the problem with this,
of course, is a doctrine known as preclusion. So in
this case, in the Williamson County case, once these litigans
(09:11):
get sent to state court, they stay there because if
the state court decides an issue, a federal court almost
certainly cannot decide that same issue. So the lower course
opinions here really relegated first choice and plaintiffs like it
receiving these invasives agenas to state court forever, meaning that
Section nineteen eighty three just doesn't exist. For plaintiffs like
(09:33):
First Choice.
Speaker 3 (09:35):
Well, and that was observed in the descent on an
earlier Third Circuit opinion. I believe as well that the
preclusion trap was something that in particular, the New Jersey
Attorney General had utilized in other unrelated but nonetheless other
cases involving constitutional rights. So what's the practical effect if
(09:59):
the if you're relegated to state court, and if the
state court were to enforce a narrower subpoena as I
understand it, at least as argued by the Attorney General
and his brief to the US Supreme Court, what would
(10:19):
be sufficient evidence of chill that would get you the
reliefs that you needed.
Speaker 4 (10:26):
Sure, so a couple of things you've mentioned. The Attorney
General is narrowing at a subpoena a couple of times,
and I think it really is a clever litigation tactic.
On the eve of the oral argument in the Third Circuit,
the Attorney General sent a letter to First Choice and said, quote,
at this time, the Attorney General was no longer seeking
(10:47):
certain donor names and contact information. It was only seeking
other donor contact information and names. And we think that
doesn't moot the case for a variety of reasons. First,
that the attorneys has never concretely disavowed he still seeks
some donor names, and he reserved the right to seek
the donor names that he says he's a narrow the
(11:08):
subpoena about, so he's still seeking that constitutionally protected information.
And the court's cases are clear that federal courts are
not required to allow defendants return to their old bad
ways when on the nave of litigation a definant reforms
his behavior, if that behavior can happen again, As the
(11:28):
Attorney General expressly reserved the right to seek donor names again,
all of the donornames. He's unconditionally seeking some even now,
but he reserved the right to seek all that he
initially had. That the federal courts just just don't let
off defendants that easily.
Speaker 3 (11:45):
And in this instance, the claim or the relevance of
those donors' names to the Attorney General is to establish
that these donors weren't defrauded. Is that his basic argument.
Speaker 4 (11:58):
Yes, And he actually admitted in lower court pleadings talk
about a chill that he wants to contact these donors,
that this Attorney General, who is overtly hostile to pro
Life causes wants to reach out and contact First Choice donors,
which of course inherently chills those relationships with First Choice.
As the donors attested to in a declaration, the possibility
(12:22):
that their names might be disclosed to a hostile state
official makes them less likely to want to contribute to
First Choice and organizations like it. The Supreme Court has
been crystal clear that these associational rights are sort of
the bedrock of the First Amendment. The ability to gather
together is a precious and delicate freedom that allows us
to exercise all of our other rights. And in cases
(12:45):
like NAACP versus Alabama to Americans for Prosperity just a
few years ago, the Court has held that these rights
are so precious that even the possibility of a chilling
effect on them is enough to advance on the merits
of the case. But here First Choice wasn't even allowed
to get into federal court at all.
Speaker 3 (13:06):
Now, I noticed that this week the Solicitor General has
requested to participate in oral argument in this case, and
I believe you and your client have consented to that.
Part of the argument the Solicitor General makes for allowing
him to participate is that there are different standards in
(13:31):
some states between the enforcement of subpoenas by the courts
and enforcement in federal courts. Is that something that I
did not see that addressed in your cert petition, nor
did I see it addressed in the briefing until the
Attorney Solicitor General filed his request. Is that something that
(13:51):
you anticipate the court will take up or consider. I
think they will.
Speaker 4 (13:56):
And the reason being is that there's a Supreme Court
case called Riiseman. It involved a lawsuit by tax attorneys
who wanted to keep certain information privileged. And what the
court said in Riceman was those attorneys who were subject
to a federal court subpoena had an adequate remedy of law.
They could challenge that federal subpoena issued by the IRS
(14:20):
through an administrative proceeding. And this is really key. They
could end up in federal court if they followed through
with that administrative proceeding. That is precisely the opposite of
what happens to a plaintiff like First Choice. If First
Choice goes to state court and the state court decides
those issues, then that means that federal court review of
(14:42):
First Choices associational and other firstmen of claims will never happen.
So it's really key here when you're thinking about the
court's equitable discretion, which is what was involved in Riceman,
then an adequate remedy at law defeats equitable jurisdiction. So
in that case, in the federal subpoena case, the later
(15:05):
availability of a federal review combined with the present availability
of an adequate remedy sufficed. Here, of course, we have
Section nineteen eighty three, which says you get into federal court.
We never get into federal court, unlike the Reisman's plaintiffs.
If the Third Circuit is correct, well, and it's my A,
(15:26):
we're back to the preclusion problem. Yes, yes, But B
it's my understanding that you filed in federal court before
the Attorney General saw any sort of enforcement in the
state court.
Speaker 3 (15:38):
Is that correct?
Speaker 4 (15:39):
Absolutely, And that's a really important point here. There aren't
any abstention doctrines at play. Younger and other doctrines might
come into play if you had a state court enforcement
order or certainly a contempt order, But in this case,
a first choice filed suit in federal court before the
subpoena was due precisely because it was suffering a present
(16:00):
injury by the chilling of its First Amendment associational and
speech rights.
Speaker 3 (16:05):
Well, that's an important practice tip for those who are
listening to Ye again. So in preparing this case, I
noticed that there are several amicus briefs by organizations like
the Beckett Fund and First Liberty and Thomas Moore Society
(16:30):
and religiously affiliated special interscripts, if you will. Why is
that and our religious liberty questions interwoven? I didn't see
them in the briefing initially.
Speaker 4 (16:47):
So they're not presently interwoven in the jurisdictional inquiry, so
we're not at the merits. We did raise a free
exercise claim in the federal district court, but the issue
before the Supreme Court here is sort of a procedural one,
and that's where when you've alleged a objected chill to
your First Amendment rights, whether you get to go into
(17:08):
federal court under Section nineteen eighty three at all. But
I think the reason that you have so many religious
groups and frankly groups that idologically are very diverse from them,
fire that supports free speech rights. The ACLU lots of
folks the Buckeye Institution of file suit to make the
(17:30):
non ideological point that where you have a state official
that harasses and seeks constitutionally protected information, that state official
needs to be held accountable in federal court. That's what
Congress provided in section nineteen eighty three. So absolutely, if
you look at the sort of harassment of pregnancy sinners
(17:51):
since the Lencoln Dobbs, they have been especially targeted. But
this is a principle that applies to any civil rights plaintiff.
Speaker 3 (18:00):
So in the real world you lose. What's the harm
beyond your what's the strategy, what's the practice that you
fear would develop if it's not already present in the
areas of protection of human life, protection of religious liberty,
(18:25):
protection of parental rights? What's the real world consequences if
you lose? Sure, So I think.
Speaker 4 (18:36):
It means that for a certain class of plaintiff, you
don't get to go to federal court. And that's a
big deal. When Congress in section nineteen eighty three provided
a remedy for malfeasans by state and local officials, that
means that every civil rights plaintiff gets to go to
federal court. You can't carve off pregnancy centers or other
(18:59):
organizations and say, as the court did in Williamson County,
that we're just not going to hear certain sorts of
constitutional claims or certain sorts of constitutional claims raised by
certain plaintiffs. Congress of the exact opposite in section nineteen
eighty three, it says, any individual who is harmed by
a state action gets to file suit in federal court.
(19:21):
And the practical reality of why Congress did that, the
Reconstruction Congress did that. It's the same reason we have
diversity jurisdiction when you have a plaintiff from one state
and it defended from another state. The founders thought that
in Congress. The first Congress thought that it made sense
to have that heard in federal court in case you
(19:42):
might have a home court advantage in state court. So
the Reconstruction Congress and other Congresses have recognized that you
might have a sort of a home field advantage in
your own courts well.
Speaker 3 (19:56):
And I think it's in your briefing, although it may
have been in one of the AMEX brief What I
found to be a very simple and clear explanation to
particularly for folks that are listening that don't practice in
this particular area, but just find the case intriguing. Is
that if the third circuit is correct, what we may
(20:20):
have is authorization of hostile attorneys general doing all sorts
of fishing expeditions that would not be permissible in federal court,
that would not be permissible federal law, and that would
guarantee not only the imminent threat of harm, but the
real harm having to occur before any remedy would arise.
(20:43):
And if you're relegated only to state court. I know
in Minnesota here we had a period where there was
what they called a democratic trifecta all three branches, and
there was some legislation that was well, basically they got
any protection for pregnant women and unborn children in the
(21:04):
state by virtue of that. And so I can see
why that's a real concern that hostile attorney generals in
certain states will initiate almost immediately these sort of non
self executing documents, but then they will be received sympathetically
by the local courts that will have exhibit the same
sort of hostility to certain sort of civil rights that
(21:28):
are important. So talk to me about some of the
arguments that the Attorney General makes in the Supreme Court.
He begins with this argument that, well, this isn't even
a published opinion out of the Third Circuit, and therefore
it violates the traditional rules about the kind of cases
(21:51):
the Supreme Court takes. Now, I see nothing in the
rules of the Supreme Court that says that it's a
requirement that an opinion be public before the Supreme Court
will take up the issue. But what's your response to that?
Speaker 4 (22:06):
So, I think it's a testament to how wrong the
Third Circuit's decision is. I think the Attorney General is
correct that as a practical matter, the Supreme Court doesn't
usually grants from an unpublished two paragraph opinion. But neither
does the Supreme Court, and neither are the Federal Court
set up to make law good for one day in
(22:27):
one case only. And I think what hopefully caught the
Court's attention here is that a federal civil rights plaintiff
is being barred from federal court for a reason that
that doesn't relate to Article three standing. If you read
the Third Circuits opinion, it says, you know, maybe it's
not right. Maybe you know you can still go to
(22:49):
state court. We expect that you'll maybe get to federal
court later, though it doesn't explain how that would would
be possible given preclusion of principles. And so I think
the Supreme Court really saw through the Third Circuit's decision
here and said, despite that two paragraph procurement opinion, this
is an important issue, and every civil rights plaintiff, we
(23:10):
hope the gore will say gets to you Section nineteen
eighty three.
Speaker 3 (23:14):
The second argument, because as I recall, your reply brief
actually cites fairly recent cases where the Supreme Court took
up unpublished opinions. So I thought that was very well answered.
The second argument they make is that there's really not
a split in a circuit split. Now, again, my reading
(23:35):
of the Supreme Court rules and the Supreme Court cases
is while a circuit split certainly enhances your chances of
getting certain granted, it is not a prerequisite. You could
have a sufficiently horrendous case without a circuit split. That
the Court the case of the internment of the Japanese
and World. They took the case and it didn't get
(23:57):
rightly to side. But nonetheless, I can think of the
opinion that would be sufficiently bad that we're not going
to wait for a split of the circuits in order
for us to correct that. What is your response to
the claim by the Attorney General that there's no circuit split? Sure?
Speaker 4 (24:16):
So, so I think it's important to point out that
those arguments were the brief and opposition stage, so they
may be decent arguments as to why the Court would
consider granting search or not. You know, a circus split
usually is sort of an indicator that the Court needs
to get involved. But as you said, there are cases
(24:38):
where the decision below is just wrong and the Court
needs to review it. And once the Court has granted
a review, then the presence or absence of a circuit
split really doesn't matter to the merits. But as to
the Attorney General's specific argument as to a circus split,
there's clearly a one to one split one two. Now,
(24:58):
I guess we can say it's not super deep. But
the Ninth Circuit and Fifth Circuit have disagreed. The Third Circuit,
in its opinion below, appeared to join the Ninth Circuit
excuse me, the Fifth Circuit in holding that even if
you have a chill so basic Article three principles, if
you have a present injury, including an objective chill, then
(25:20):
that satisfies Article three standing. But what the Fifth Circuit said,
what the lower courts here said, is we're going to
add something to that. We're going to say that, you know,
a chill is not enough. Instead you have to have
a statecourt enforcement order. But of course then you probably
never get into federal court at all, which brings us
back full circle. The Ninth Circuit takes a different approach.
(25:43):
The Ninth Circuit said that a First Amendment chill can
indeed satisfy Article three and that's all you need. So
those cases absolutely diverge. But the more I think important
purpose or answer for present purposes is that under bedrock
Article three principles, a present injury suffices. Course, don't get
(26:05):
to add on to that.
Speaker 3 (26:08):
And I noticed the way you carefully characterized the Third
Circuit opinion, because as you noted, it's two paragraphs, so
there's not a whole lot of you know, we joined
this circuit and we think their analysis is better than
this circuits. In fact, there's none of that in the opinion.
Why do you interpret the Third Circuit as joining the
Fifth Circuit on this.
Speaker 4 (26:30):
For a couple of reasons. Several times it mentions ripeness
first and foremost, and then it mentioned several times that
it expects the state court to be fair. It mentions
the availability of state court review, and so the Third
Circuit was clearly contemplating that in order to ripen the case,
First Choice needed to go back to state court. It
(26:51):
also frankly upheld the lower court decision that held the
case was not ripe until it received an enforcement order
on pain of contact. But again, the lower courts don't
get to in graft additional requirements. As the Court has
said over and over as of late, the federal courts
have a virtually unflagging obligation to exercise the jurisdiction which
(27:12):
they've been given. They don't get to carve out pregnancy
care centers from Section nineteen eighty three.
Speaker 3 (27:19):
One of the listeners has asked a few years ago,
in Twitter versus Paxton, the Ninth Circuit dismissed, is not
ripe Twitter's effort to try to stop CIDs from the
Texas AG? Is the case distinguishable or is it just wrong?
Speaker 4 (27:35):
So we actually agree with the legal reasoning put forth
in Twitter, I think it's put note two. But in
the Twitter case, the court says that a objective chill
statisfies Article three and would make the case ripe. The
court there just didn't think that Twitter had in fact
alleged and objective kill a chill. I think they called
(27:57):
it bare factual allegation. Here, we of course have a
lot more than bare factual allegations. When you were looking
at the right of association. If you look at Americans
for Prosperity, if you look at the NAACP case from
the nineteen sixties fifties, you get the idea that this
(28:18):
associational right is inherently infringed by a disclosure demand. And
that makes complete sense when you are a nonprofit association
who is associating with donors who are contributing to your nonprofit,
and their names, addresses, and phone numbers are requested by
(28:38):
hostile state attorney general so you can get into contact
with them. That chills associational rights. So as the course
said in Americans for Prosperity Prosperity that that chill is reasonable,
it gets you exacting scrutiny, and it certainly gets you
into federal court. So short answer, we think that that
footnote that reasoning is correct, but that here there is
(29:00):
an objective.
Speaker 3 (29:01):
Chill, what kind of facts would justify given the hostility
and your brief I thought was extremely effective.
Speaker 5 (29:13):
Of evidencing the hostility, including graphic pictures of the various
things and the conduct of the age as a predicate.
Speaker 3 (29:24):
But what sort of facts, if any, in your opinion,
would allow attorney generals, especially if they perhaps suspected money
laundering through a charitable or fible one c. Three What
sort of Are there any facts that you think that
chill would not be sufficient? Or is that a merits
question more than a standing question.
Speaker 4 (29:46):
Absolutely, that's the merits question. So I think when you
have the shill, you're entitled to get into article you
have satisfied Article three, you're entitled to get into federal courts.
And then at that point, as the California Attorney General
argued Americans for prosperity, maybe there are good reasons that
you need particular donor names. I'm here the Attorney General
(30:07):
has never cited a single instance, a single complaint against
first choice. So we don't think that would be at
all satisfied. But it would be a merits question rather
than a standing one.
Speaker 3 (30:19):
And so at this point in time, have they set
the argument day yet they have not.
Speaker 4 (30:28):
We believe it'll be in December, but it has not
been set.
Speaker 3 (30:30):
Okay. And is there are there continuing proceedings in the
state court or have those basically been stayed pending resolution
of this Those have been.
Speaker 4 (30:46):
Stayed the Attorney General agreed to stay statecourt enforcement proceedings
during the tendency of the cert petition and then Maris
determinations by the Supreme Court, So those are not ongoing.
Speaker 3 (30:59):
And have any of your Have any discovery materials been
provided to the Attorney General at this point?
Speaker 4 (31:06):
Yes, First Choice has produced about I think twenty three
hundred pages of materials documenting the various things the Attorney
General requested again going back ten years, really invasive demands
from everything from training manuals to again the donor names.
But First Choice has not provided those donor names or
(31:28):
contact informations. Instead, it objected that those were constitutionally protected.
Speaker 3 (31:33):
Okay. And it was the training materials and some of
the internal memos as I recall that organizations like Beckett
First Celebrity were saying race not only the free speech,
the chilling effect, free association, but also free exercise concerns
because of the motivation which you described earlier. At this
(31:58):
point the questions of folks that have provided and so
if you have questions, are listening, I please let us
know so that we can be sure and address them.
So as you prepare for this, I'm sure you're going
to do several moods. And then how long would you
(32:20):
anticipate will this be one of the earlier decisions since
it is procedural in nature that we can anticipate the
court handing down, unlike some from last session that were
the very last day that we were all waiting on.
Speaker 4 (32:33):
So I think it depends. Like typically, the more hot
button issues do tend to be issued later in the
term because the justices are really debating them, going back
and forth on descends and concurrences and majority opinions at
the court. I'm here. We hope you know that you
always dangerous to predict the deal leaves, but we hope
(32:56):
very much that the Supreme Court will agree.
Speaker 3 (33:00):
You know with.
Speaker 4 (33:00):
Amiki on all sides of the ideological spectrum that regardless
of one's views on abortion, regardless of one's views on
pregnancy centers, that when you have an objective chill of
your First Amendment rights, you should be entitled to avail
yourself a federal court under section nineteen eighty three. So
we're hopeful that principle will not be controversial. But Boie
shall see it does.
Speaker 3 (33:23):
Except for the non self executing aspect, which you have suggested,
it's largely a red herring in this context. It does
seem to be a pretty clean procedural question with an
answer of yes or no, and not a terribly complex question,
although one should always be cautious about saying anything that's
(33:45):
in front of the three court and characterizing it is
not terribly complex.
Speaker 6 (33:49):
So Bud yes, and onely just to pick up on
the non self executing event, so you know, First Choice
here received a subpoena as them from the Attorney General's
office actually showed up at First Choice, requested to see
any humor, and handed it the subpoena that has the
course of law that says that she will be on
(34:10):
pain of contempt if she doesn't produce all of this material,
and it cites statutory provision that allow for the imposition
of penalties for the failure to quote obey the subpoena.
So even if you think that szebpena is not the
executing Again, I don't. But even if you think it's
non self executing, receiving that sort of subpoena would chill
(34:34):
objectively chill First Amendment rights of an organization like First Choice.
Speaker 4 (34:39):
So I think I really think that non self executing
is simply legally irrelevant. The question is whether receiving this
coercive government demand did that chill? Did it reasonably chill
first choices associational rights, regardless of what they're self executing.
It was the chill root Stambol and I think it
is when you get a sympone and word of the
(35:01):
way the New Jerseys is when it's backed up by
the force of law in another filing, and it's state
court contempt filing to enforce you me, yes, state court
action to enforce the subpoena. It actually said a New
Jersey turning General actually said that First One has already
violated all of these statutes. So you've got you've got
(35:24):
this massive enforcement proceeding taking place against First Choice. So
we think the chill is eminently reasonable.
Speaker 3 (35:31):
Now, this litigation has been going on for three years,
two years, okay, And this may be an improper question,
in which case you can just round at me and
we'll move right on. But have you has your client
seen a declining contributions out of fear.
Speaker 4 (35:51):
So the clients has submitted a donor declaration, and those
donor declarations do attest to that chill. Of course, standing
is assessed at the time the complaint is filed. But
donors have attested that they will be less likely to
donate because of the possibility that the Attorney general would
(36:12):
get their names as a hostile state official. So and again,
cases from the NAACP all the way through Americans for
Prosperity really hone in on both the importance of this
First Amendment right to associate anonymously, as well as how
sort of delegate those freedoms are. And a in Bantam
books that the mere threat of hostility, not backed up
(36:35):
by coercion was enough for a First Amendment harm. So
the court's cases have very much cited with the First
Amendment in these sorts of cases protecting it from harassment
and abuse by state officials.
Speaker 3 (36:51):
Well, and we know that historically, for example, any contribution
would have consequences outside of the hostile attorney general. I'm
thinking in particular of the marriage fight, where you had
the founder of a major computer programming company that was
(37:13):
essentially ousted over his position, and a donation that supported
traditional marriage in California. California has been particularly active, it
seems to me, in seeking donor information and in that
information and having all sorts of adverse consequences to those donors,
independent of whether they're legal actions by the Attorney General
(37:36):
or cultural actions or commercial actions by others, boycotts, etc.
What have I not asked you that I should have
asked you?
Speaker 4 (37:47):
Oh goodness, I think you've covered it all really well.
I guess one thing that's helpful to point out is
that there are two main theories that first choice is
advocate for binding standing. We've talked a lot about the
chilling factor under the First Amendments associational protections, but of
(38:09):
course the Supreme Court also permits pre enforcement review, and
so we think that there's also Article three standing under
cases like SBA list that say when you have a
credible threat of enforcement, then that itself is a harm.
That's actually what the Solicitor General the United States freef
focuses on, that there is a credible threat of a
(38:30):
future harm. Both the burdens of defending against that enforcement
and the possible content and production of those protected documents,
So really two different ways of getting to the same place.
Speaker 3 (38:43):
Actually, that pre enforcement challenge, I believe, was a doctrine
that emerged in A versus Planned Parenthood versus AO, and
I was counselor at the lower courts in that and
the Solicitor General introduced the idea and the court accepted.
It's the only unanimous opinion on abortion from the United
(39:03):
States Supreme Court ever, But it was this sort of
procedural concern that they could unify on it to uphold
the new Hampshire paril involvement law at that point in time,
so well pending other questions, I would like to thank
(39:24):
you very much, not only for the fact that you've
been so clear in explaining the position of your client
and helping us understand to a large degree the arguments
that are being made by the Attorney General in this case,
but also the fact that the Lies Defending Freedom was
willing to step up and help a nonprofit. My husband's
(39:45):
been in the nonprofit arena for decades, and the sort
of legal counsel that ADF provides is not the sort
of legal counsel that any nonprofit really can afford, it's
more superior, and so your client is lucky to have you.
(40:05):
So with that, I will close seeing, Oh, we have
one further perhaps one further question. Oh, please provide contact
information for Aaron and Teresa Collette. I can be contacted
through the University of Saint Thomas in Minnesota. Teresa dot
(40:29):
r T s C O L L E t T
at St. Thomas dot ed U. Aarin, are you in
a position to provide some contact information?
Speaker 4 (40:40):
Sure, you can just reach me at my email at
ADF E. Hawley h A W L E Y at
adf legual dot org.
Speaker 3 (40:49):
And with that we will thank our audience and thank
the Federal Society for giving us the forum to explain
the case so that people can understand it more clearly.
And I'll look forward to perhaps chatting again in December
after oral argument occurs. Perhaps, Thank you, Eric, Thank you.
Speaker 1 (41:09):
Thank you for listening to this episode of FEDSOC Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the Practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.
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