Summary of facts: In coordination with Planned Parenthood, New Jersey’s attorney general served an investigatory subpoena on First Choice Women’s Resource Centers, Inc., a faith-based pro-life pregnancy center, demanding information about its donors and personnel. The attorney general selectively targeted the nonprofit based on its religiously based pro-life views. First Choice asked a federal district court to issue a restraining order nullifying the subpoena, arguing that it chilled the exercise of religion and free speech by intimidating potential donors. The court dismissed the case, holding that a challenge to a state investigatory demand is not “ripe,” i.e., not yet an injury a federal court may address, unless a state court first orders the target of the subpoena to comply. First Choice appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the dismissal. First Choice then filed a petition for mandamus with the U.S. Supreme Court, asking it to direct the district court to accept jurisdiction and decide the motion for a restraining order. The Supreme Court denied that petition. The New Jersey attorney general then obtained a state court order directing First Choice to comply with the subpoena and threatening it with sanctions if it did not. First Choice then renewed its motion for a restraining order in the federal district court, which again held that its motion was not ripe because there was no “actual or imminent threat of forced compliance by the state court.” First Choice again appealed to the Third Circuit. A panel of that court again affirmed the district court’s ruling, but with one judge issuing a strong dissent. First Choice then asked the Supreme Court to hear its case. The Supreme Court agreed, and First Choice is now asking the Court to overturn the ruling of the Third Circuit.

RFI’s position: An institution should not have to wait until it suffers an actual sanction for constitutionally protected conduct in order to maintain a First Amendment claim. A credible threat, such as that issued by the state court in this case, ripens a claim. That is because the threatened sanctions chill the exercise of First Amendment rights, and faced with an unconstitutional demand, many will comply rather than disobey and risk sanctions. The U.S. Supreme Court should find that First Choice’s First Amendment claims are ripe, and enter an injunction (thereby suspending New Jersey’s subpoena) while its appeal is pending to prevent the disclosure of its donors.

Read the brief here.