Amicus Brief: In re First Choice Women’s Resource Centers, Inc.

New Jersey’s attorney general, acting on a legal theory of “consumer protection” that it developed with Planned Parenthood, served an investigatory subpoena on First Choice Women’s Resource Centers, seeking information about its donors, advertisements, personnel, and allied relationships. First Choice brought a constitutional challenge to the subpoena in federal court and immediately sought a preliminary injunction and temporary restraining order (TRO). Instead of deciding that motion, the district court dismissed the case for lack of jurisdiction, holding that a challenge to a state investigatory demand isn’t ripe unless the demand has been enforced by a state court. The district court acknowledged that this would mean such challenges would likely never be ripe: any state-court action to enforce the subpoena would also be preclusive of any federal objections.

First Choice appealed and moved for an injunction pending appeal based on clear Third Circuit precedent. A Third Circuit panel denied that motion in an unreasoned order. At the same time, the New Jersey AG filed a separate action in state court to enforce the subpoena. New Jersey’s state appellate courts have refused to defer to a federal challenge in a state enforcement action. Unable to obtain timely relief in any other court, First Choice filed a petition for mandamus with the Supreme Court to direct the district court to take jurisdiction and decide its TRO and preliminary injunction motion. In the alternative, First Choice has requested that the Court simply take up the case to resolve the circuit split on the requirements for standing in a lawsuit that challenges state investigatory demands. MI, joined by four other organizations, filed a supporting amicus brief that presents the associational and privacy harms from states’ being allowed to use dubious claims of “consumer protection” to compel nonprofits to share donor and related information.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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