It was painful to listen to Sundeep Iyer, Chief Counsel to the Attorney General of New Jersey, at oral arguments in First Choice Women’s Resource Centers v. Platkin, trying to defend the state of New Jersey’s actions in this case.
The New Jersey attorney general (AG) selectively targeted the nonprofit because of their Christian, pro-life views, with an unwarranted and burdensome subpoena requiring them to produce documents disclosing the personal data of their donors. There had been no complaints against the clinic. Yet the AG’s subpoena threatened the ministry with contempt and other penalties if it failed to comply with its unconstitutional demands.
Still, Mr. Iyer argues before the nation’s highest court that this official subpoena by the state’s highest law enforcement officer would not intimidate donors of the ministry into thinking that their personal information would be given to them. They actually argued that First Choice was apparently free to ignore the subpoena.
Thankfully, none of the justices were buying the preposterous characterization. Justice Neil Gorsuch reminded him that, “[J]ust looking at the statute, it says the AG’s subpoenas have the force of law, and if a person fails to obey the subpoena, the AG may apply to the Superior Court and obtain an order adjudging such person in contempt of court.”
Legally speaking, the difference is between a self-executing subpoena (which would take effect immediately) and a non-self-executing one (which would not take effect without a court order). Frankly, the difference makes no difference to any ordinary person receiving a subpoena using the language discussed above. Justice Gorsuch put it plainly, “I don’t know how to read that other than it’s pretty self-executing to me, counsel.”
But New Jersey insisted that the reading of every reasonable person must be discarded and their private interpretation upheld, so that First Choice does not have “standing” (legal footing) to bring the claim at this point, until they actually take them to court later. But, of course, as any reasonable person can see, by that point, the damage to their ability to fundraise without unfair, unjust, and unconstitutional government interference would have been severely affected, as some of their affidavits showed.
Mr. Iyer acknowledged that everything hinged on their outlandish reading of their subpoena. “If you disagree with us and think this subpoena is self-executing, there’s no dispute that Petitioner would have standing from the moment of the issuance of the subpoena.”
Justice Elena Kagan was puzzled at the argument, thinking the AG’s office would argue that all its subpoenas were self-executing (which they had actually argued in another case that they lost at the Third Circuit Court of Appeals). She asked, “So do you view your position in this case, the reason that you took this position, did you view it as, like, you were required to take this position by the Third Circuit?” Mr. Iyer tried to argue that they now agree with the Third Circuit, even though they argued differently then.
The state was dug in. Chief Justice Roberts tried to see if they could see why their actions would be concerning to any ordinary person.
Do you think there is a credible chilling effect from the state seeking full names, phone numbers, addresses, present or last known place of employment, of every one of their donors who gave through any means other than the one specific website? In other words, do you think they have a credible chill concern?
The question seemed so obvious that it sounded like the Chief Justice was opening a door for them to appear more reasonable by acknowledging the sensible concerns, only to explain why they were not applicable here. But no, in New Jersey’s view, we are all crazies. There is no chilling effect from their harassment.
The Chief Justice insisted, “So, you don’t think it might have an effect on future potential donors to the organization to know that their name, phone number, address, et cetera, could be disclosed as a result of the subpoena?”
Not in Mr. Iyer’s world. The Chief Justice pressed him on what that evidence looks like, and Mr. Iyer acknowledged an affidavit where donors attested that, “Each of us would have been less likely to donate to First Choice if we had known information about the donation might be disclosed.” But Mr. Iyer says that doesn’t count because it looks backwards.
Justice Gorsuch was incredulous (as was everyone listening to this charade).
Really? I mean, we’re going to now pick over the tense of a verb that they chose? I mean, they’re saying: “If we had known that this was going to happen, we wouldn’t have given. Per force, if it’s going to be disclosed, we won’t give. I mean, doesn’t that just follow night from day?”
“We don’t think so,” answers New Jersey. The laws of nature apparently don’t apply to the “Garden State.”
It was all for show, too, because Justice Samuel Alito asked, “But what if they had said — what if they had used the future tense, if this information is disclosed, we will not donate?” It was still not enough for Mr. Iyer.
Justice Kagan even pressed him about the evidence supporting their concerns. She asked, “[S]uppose that you think courts basically order these subpoenas complied with 98 percent of the time.” Mr. Iyer’s response? “I don’t think still that would be enough.”
In a frank comment caught by the mic between exchanges, Justice Amy Barrett was heard saying, “Really?”
Even though New Jersey’s hostility towards crisis pregnancy centers is palpable, they, of course, argued that it wasn’t so before the Court. Sure, the clinic takes issue “with our statement in that alert that there may sometimes be misrepresentations or false statements that are made in the provision of medical care.” But they don’t think that is “evidence of hostility.”
In a remarkable exchange, Justice Alito asked about the remedy for First Choice, saying, “So they have to litigate the matter in state court, and until a state court orders them to comply and, in doing so, rejects their First Amendment challenge to the subpoena, they cannot go to federal court?” Yes, that is New Jersey’s position, though they danced around it for some reason.
The reason became clear when, in a stunning follow-up, Justice Ketanji Brown Jackson was astonished by this. She said, “But, at that point, aren’t they precluded? I mean, you’ve sort of made it impossible for them to make their claim in federal court, right?”
That is, in fact, New Jersey’s preposterous position. First Choice would never be able to bring its claims to federal court. Mr. Iyer danced around it, but Justice Jackson summarized his response, “So you’re not saying they wouldn’t be precluded. You’re just saying there are times when it’s too bad?” “I’ll grant you, here,” he finally had to admit, “we think they would be precluded.”
All of this intrusion, based on nothing. Justice Clarence Thomas drilled on it for several questions: “Did you have complaints that form the basis of your concern about the fundraising activities here?” “We haven’t had complaints about this specific pregnancy center,” Mr. Iyer admitted.
Justice Kagan tried to reason with Mr. Iyer one last time, “[W]hat’s an ordinary person supposed to think … one of the funders for this organization or for any similar organization presented with this subpoena and then told but don’t worry, it has to be stamped by a court, is not going to take that as very reassuring.”
Justice Brett Kavanaugh even brought up that the American Civil Liberties Union (ACLU), no bastion of conservatism, is actually on the side of the clinic in this case:
The ACLU’s amicus brief expresses concern about what they call suppression by subpoena and censorship by intimidation, and they say, you know, just go with the common-sense framework that the Court’s cases have, which have said that ‘a speaker is not obligated to wait for formal enforcement before challenging the constitutionality of state action’ and ‘a subpoena seeking sensitive donor information,’ to pick up on Justice Kagan’s common sense point, ‘can chill a disfavored speaker’s protected associations long before it’s ever enforced.
Nothing broke through. Let us hope the absurdity of it all materializes in a unanimous decision for the clinic that sends a clear message to other anti-life states looking to intimidate and interfere with the great and honest work of pro-life clinics seeking to serve underprivileged women in their crisis pregnancies.
