Summary of facts: In coordination with Planned Parenthood, New Jersey’s attorney general served a burdensome 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 religious speech and pro-life views. First Choice asked a federal district court to issue a restraining order (which, if granted, would have nullified the subpoena), arguing that the subpoena violated its rights under the First Amendment. The court dismissed the case, holding that a challenge to a state investigatory demand is not ripe unless a state court first orders the target of the subpoena to comply. The state court ordered sanctions, but they only become effective if First Choice does not comply by a certain date. The U.S. Court of Appeals for the Third Circuit 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 now appeals the district court’s dismissal to the Third Circuit.

RFI’s position: A person need not wait until he suffers an actual sanction for 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 Third Circuit should therefore 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.