First Choice Women's Resource Centers v. Platkin

Thank you, Mr. Chief Justice, and may it please the Court: This Court has long safeguarded the right of association by protecting the membership and donor lists of nonprofit organizations like First Choice. Yet the attorney general of New Jersey issued a sweeping subpoena commanding on pain of contempt that First Choice produce donor names, addresses, and phone numbers so his office could contact and question them. That violates the right of association. Yet the lower courts held that First Choice must litigate its First Amendment claims in state court. That violates this Court's decision in Knick, contradicts the courts' virtually unflagging obligation to decide cases 1 within their jurisdiction, and runs contrary to Section 1983. Even the attorney general now agrees as much. His newest rationale for evading review -- questioning First Choice's chilling injury -- fails for two reasons. First, First Choice's associational interests were harmed the moment it received a coercive subpoena demanding donor names on pain of contempt. This is true irrespective of whether the subpoena is non-self-executing for even an unenforceable threat may chill First Amendment freedoms. Second, the attorney general does not dispute that First Choice faces a credible threat of enforcement, and there's no question that First Choice's First Amendment interests are arguably burdened by the subpoena. This Court's cases require no more. The attorney general's proposed subpoena exception from ordinary Article III rules would mean that the NAACP could have received a hostile subpoena from an attorney general and federal court review would not have been available until a state court ordered 1 production. But then Younger abstention and res judicata would almost certainly slam the federal courthouse doors shut. This Court should reverse and hold that this subpoena violates the First Amendment and satisfies Article III.

Sure. So, under Article III, we can have both a present and a future imminent harm, Your Honor --

So the subpoena commands First Choice to do several things. It commands it to produce 28 different categories of documents, including every solicitation e-mail and text message it sent to its donors. It commands it produce donor names, addresses, phone numbers, as well as places of employment. It imposes a litigation hold, Your Honor. And it also chilled First Choice and its donors' First Amendment rights. 1 If you look at the complaint, the complaint alleges both a present as well as a future-looking chill. The complaint alleges the coercive nature of the subpoena. This is at Petition Appendix 127 through 129. It details that the subpoena demands on pain of contempt these donor names. Petition Appendix 124 through 126 places this subpoena in context. This is the context of a hostile attorney general who has issued a consumer alert, urged New Jerseyans to beware of pregnancy centers, and assembled a strike force against them.

No, Your Honor. The attorney general has never identified a single complaint against First Choice.

Absolutely not, Your 1 Honor. This is not in the record, but First Choice immediately convened an emergency board meeting to discuss the subpoena. The very Latin term for subpoena means under penalty. If you look at the face of the subpoena, it twice commands First Choice to produce on pain of contempt, and it twice threatens that the failure to comply with the subpoena, not a later state court order but with the subpoena, shall render First Choice liable for contempt and other penalties at law. Some of those other penalties at law are business dissolution. That is a death knell for nonprofits like First Choice.

So that is true, Your Honor, but I don't think that matters either 1 under associational harm or under pre-enforcement review. The question for associational harm is whether a reasonable nonprofit organization or a reasonable donor would have been chilled. The attorney general concedes that's the test at his brief, page 20. As far as pre-enforcement review goes, the attorney general does not contest that there's a credible threat of enforcement here. And as SBA List identified, there are several injuries that flow simply from pre-enforcement review. One of those is the burdens, the time and resources spent on litigation. The second is the possible imminent order of disclosure. And the third here, which -- which may not be at issue if this Court accepts the attorney general's view, is the imminence of a penalty. But regardless, those other injuries do occur. And, in this case, we have the additional chilling injury.

Not at all, Your Honor, not before an enforcement proceeding. There's no question the enforcement proceeding threat is credible. The attorney general has, in fact, entered enforcement proceedings. He has entered a motion for sanctions over First Choice's attempt to protect its donor names. And, in fact, 12 briefs have been filed at the state trial court demonstrating the enormous burden that state enforcement alone can cause on a nonprofit organization like First Choice.

So, to answer that last question first, we're perfectly happy with a decision from this Court under either theory. Under our associational harm theory, we think what First Choice needs to show is that a reasonably objective donor or nonprofit, as described as a person of ordinary firmness, would have been chilled by the coercive subpoena. We think that's clear here. Under the second theory, the pre-enforcement theory, what First Choice would need to show is a credible threat of enforcement. Again, enforcement's already occurred. The attorney general does not and cannot dispute that. In addition, you need to show that your constitutional or federal rights were arguably burdened. Again, there's no question this subpoena arguably burdens First Choice's First Amendment rights. As far as scope goes, Your Honor, we don't think that either of them would open the floodgates. With respect to the pre-enforcement theory, there are a couple of procedural 1 safeguards built in. To begin, you would have to satisfy the other requirements of SBA List. Basically, you would have to show a plausible federal cause of action. In addition, you would need to show irreparable harm in order to get a preliminary injunction to enjoin the state official. In most cases outside of the First Amendment context, we think that would be relatively difficult. So we actually think the scope of those two different theories will be relatively similar, again, because of that requirement of irreparable harm.

With respect, Your Honor, I think an ordinary nonprofit receiving a subpoena commanding compliance on pain of contempt would find that to be chilling. In addition --

So -- so either of them suffice here, but -- but --

-- to address your question on pre-enforcement, the question is whether, when the subpoena was delivered, there is a credible threat of enforcement. That credible threat is clear on the face of the subpoena. It --

So -- so two responses, Your Honor. Under this Court's cases like Steffel and Dombrowski, the ultimate success of a constitutional challenge does not diminish the credible threat of enforcement. This Court has never required that a plaintiff show that he has a really bad case in order to get into federal court. And second, Your Honor, Section 1983, the reconstruction, Congress clearly provided plaintiffs who have been harmed by alleged state malfeasance a choice between federal and state court. First Choice is simply asking for its day in federal court here. We think it satisfies two theories of Article III standing. And with respect to the sorts of things that could happen in -- in -- later in the case, the attorney general, for example, talks about negotiation, but negotiation can 1 always occur in every case. The courts can easily handle those sorts of things through their docket management tools, but it doesn't take away the fact that Article III standing exists. In fact, to take this case as an example, the attorney general did not narrow his subpoena until the Third Circuit granted expedited review. To find that negotiation somehow obviates Article III would give the government the whip hand in every one of these cases.

So I think it depends. A letter depends on the facts and circumstances of the case. If it's a birthday card from the attorney general that says: You know what, I notice your fundraising has just been amazing and -- and my fundraising could use a boost, could you introduce me to some of your donors, that's really different from a letter like at issue in Bantam Books, which was issued under apparent state authority and demanded donor names. I think --

Yes, Your Honor. Under Bantam --

The -- the question -- I think the subpoena makes it worse. Again, the Latin for subpoena is "under penalty."

Yes, and because it shows it's reasonable be -- to be chilled.

Yes, Your Honor. That's what this Court held in SBA List, also alluded to it in Ex Parte Younger.

So --

So a few responses, Your Honor. First, irreparable injury is separate from the injury this Court found in SBA List, which is the burdens of litigation. We don't need to show irreparable injury --

So -- so I think that's not quite correct, Your Honor, for the reason being that if we're in state court, it's because we've been forced there because the attorney general, as he has here, has enforced the subpoena.

Yes, Your Honor. But I think the burden this Court identified in SBA List is the burden of being forced into state court. If there's a credible threat that --

So -- so we think, Your Honor, under SBA List, the best reading of that is that there are actually four possible imminent injuries. One is the burdens of litigation we've been discussing. One is the imminent disclosure order, in this case, of donors. The third is the imminence of a adverse order on penalties. If you accept the AG's theory, maybe that doesn't exist in this case. And the fourth is the chilling injury.

Correct, Your Honor.

Yes, Your Honor.

I don't think you need to, Your Honor. Under this Court's case law, where a lower court's determination of state law is as plainly incorrect as it is here, this Court need not defer. And I can explain why that state law determination is wrong, but a prefatory note that it doesn't matter. In this case, even if the attorney general's subpoena is non-self-executing, First Choice and its donors were reasonably chilled.

Bantam --

Yes. Yes.

Thank you, Your Honor. The state says the subpoena is voluntary. That's not what the face of the subpoena says. It says command or else we'll possibly go after your business license or 1 you'll wind up with contempt. That's not what the state law says. If you look at the last page of our opening brief, it details Section 5686. It says that if you fail to obey the subpoena, again, not a later court order, if you fail to obey the subpoena, you could be subject to contempt, you could lose your business license. Those are the death knell for nonprofits like First Choice. It's also not what the attorney general said in either this case or in Smith & Wesson. In this case, he told the state court three times that the mere failure to comply with the subpoena by producing documents violated three separate state laws. It's at JA 50, 53, and 59. And, finally, in the Smith & Wesson litigation, the attorney general argued in the Younger context that subpoenas have the force of law, that they can be immediately opposed contempt, and, in fact, he sought contempt in that case for a mere failure to comply.

To my knowledge, Your Honor, in this case.

Yes, Your Honor. So we think the best way to look at this case is an Article III injury in fact. In SBA List, this Court equated Article III injury in fact with 1 constitutional ripeness. We don't think, since Lexmark, that prudential ripeness is necessarily something this Court is looking to expand. So we think the question is whether First Choice has satisfied a present or future injury. That would be assessed at the time of the complaint. But you can look to the future enforcement to show that the chill and the credible threat of enforcement were credible and objective at the time the complaint was filed.

So I think two responses, Your Honor. First, First Choice has alleged a present injury. If you look at the context --

Yes.

So, with respect to the 1 pre-enforcement theory, I think this Court's most recent precedent on that is SBA List.

And what the Court said is that when you have a credible threat of enforcement, that means these other injuries are sufficiently imminent. And even accepting the attorney general's theory that maybe First Choice is not immediately subject to contempt -- we think that's wrong -- but even if that's correct, you do have those other three imminent injuries.

They are --

Sure. The burdens of litigation, the fact of an imminent possibility of a disclosure order for donors --

So, in SBA List, this Court considered the possibility of an adverse action to -- the credible threat in SBA List takes the -- the place of the imminence if you 1 have --

Yes, if you have a credible threat. And -- and that makes sense, Your Honor, because it -- it -- it --

Exactly. Under Dombrowski, under Steffel, this Court has never required criminal defendants and others to show that they might actually be punished, which makes sense, again, because, if a law is super-unconstitutional, that doesn't mean you -- you sort of talk yourself out of federal court.

Sure.

Sure, Your Honor. And that's actually why we think the First Amendment associational harm here is important --

-- in addition to the pre-enforcement, because, as you identify, if you have an investigation, the pre-enforcement threat is not going to come into play in that context.

So we think there are cases like Bantam Books, like Speech First, which Respondent identifies, in which pre-enforcement will not be applicable, and this Court should make clear that the First Amendment protects those interests and standing as well.

Mr. Chief Justice, and may it please the Court: A plaintiff has Article III standing to challenge a subpoena so long as the plaintiff faces a credible threat that the subpoena will be enforced against it. The plaintiff doesn't need to make a further showing of a chill on its associational activities. The chilling effect is relevant to the merits of the First Amendment claim, and it's also important to establishing irreparable injury, but it isn't necessary for Article III standing. The judgment of the Third Circuit should be reversed.

We have proposed the credible threat theory rather than the objective chill theory for two main reasons, the first of which is that this Court has had many cases about credible threats of enforcement and pre-enforcement challenges. That is a well-developed doctrine. That's --

The threat here is that the state will begin -- in fact, has already begun -- a suit to enforce the subpoena if the materials are not turned over, imposing litigation costs on First Choice.

Still standing as long as the subpoena had been issued because, at that point, First Choice faced a credible threat that the suit would ultimately be --

In that case, almost 1 certainly no standing, the reason being that a mere letter doesn't carry the same threat of enforcement as a subpoena would. Now we could envision some hypothetical case closer to Bantam Books where a letter in practice operates much like a subpoena under some state's unusual scheme, but setting that aside, there would not be standing.

That's correct, Mr. Chief Justice. I wonder -- sorry. Justice?

Correct.

We accept that New Jersey subpoenas are not self-executing. The face of the subpoena suggests that it is self-executing, but we accept that regardless of what the subpoena says on its face, the courts have treated it as non-self-executing.

That's correct.

There are two main problems. The first is that this Court has a series of cases saying a subject of chill is 1 not enough for Article III standing: Laird versus Tatum, Clapper, and Whole Woman's Health against Jackson. So you'd have to draw a distinction between an objectively reasonable chill and a subjective chill. The second is that the chill is highly relevant to the merits and to irreparable injury, and there's a risk that courts might conflate the Article III requirements with the merits requirements. You'd to have draw fine distinctions about, for instance, whether a particular degree of chill may be sufficient for Article III but not necessarily sufficient on the merits to prevail on the First Amendment claim. If the Court is uncomfortable, however, with the breadth of our credible threat theory, then the backup we would urge the Court to adopt is to say credible threat plus a chill is enough. Leave for another day whether the credible threat alone would be sufficient.

A person has standing, but there are other obstacles that would keep many of those litigants outside --

No. The most important obstacle is irreparable injury. And chill is very important to establishing irreparable injury, which is a higher bar than Article III injury, and that's the main gatekeeper in our view.

I don't have exact numbers, but my understanding is that the general practice is that subpoenas are not 1 self-executing. That's true at the federal level and in the states as well.

The normal rule is that standing is assessed at the time that the suit is brought and that doctrines like mootness affect whether later developments change standing. And I understand there to be disputes between the parties about whether, at the time the suit was brought, it was clear that this subpoena was, in fact, non-self-executing, but we're willing to accept that for purposes of this case because the outcome in our view doesn't turn on that feature.

In general, yes. There are some narrow statutes where Congress has authorized pre-enforcement motions to quash, and in those contexts, there would be Article III standing.

I appreciate that concern, and we agree that pre-enforcement challenges 1 can in some circumstances be disruptive, but we just don't think Article III is the correct tool for addressing that concern. Instead, the main tool should be the irreparable injury requirement. There should be no basis for granting a preliminary injunction unless there's some irreparable harm that will be suffered before the state court ultimately orders enforcement. In the vast majority of subpoena cases, that won't be the case, but in First Amendment chill cases, that often can be shown.

It's redressable because you have to accept the parties' allegations and merits arguments for purposes of assessing standing even if, ultimately, those arguments turn out to be incorrect.

The chill theory would not affect federal litigation because the chill theory goes to Article III, and our objections to the pre-enforcement suits in federal litigation involve the existence of a cause of action.

There are narrow circumstances in which ultra vires review in equity would be available even with respect to federal subpoenas. But, as the Court said in its Nuclear Regulatory Commission decision last term, the standards for that are quite high and it would be a very narrow exception. But, if the -- we don't have concerns with adopting a chill theory so long as the Court says that a credible threat plus a chill --

No.

I'm suggesting only that Congress has made different decisions about what types of causes of action to provide.

No. That's a good argument to make to Congress for creating new causes of action.

To Congress, yes.

This Court doesn't have the authority to be --

No. As I've mentioned, there is a narrow exception under ultra vires review, but, in general, the ability to challenge it in federal court comes at the end of --

Ultra vires review is merely another term for the same equitable action that we --

It's the same thing, yes.

Exactly right. Yes. (Laughter.)

It's -- it -- it is -- it is very narrow, but it is theoretically available in some extreme circumstances, yes.

Leedom and Kyne is the one that comes to mind. That was a long time ago.

No, because, in most cases, the opportunity in -- to get a federal court to adjudicate the lawfulness of the federal subpoena is provided at the end of the subpoena enforcement process, and, therefore, there isn't the same question as arises in this case about losing the federal forum entirely.

No, Justice Jackson, when --

Pre-enforcement challenges 1 are a staple of federal litigation, and in those challenges, what a court does is simply ask is there a threat, a reasonable objective threat that the state will begin proceedings or that the prosecutor will begin proceedings. To determine standing, you don't need to make a further inquiry into how likely it is that --

That's the injury.

Mr. Chief Justice, and may it please the Court: Petitioner's factual allegations do not show that the issuance of this subpoena objectively chilled Petitioner's First Amendment rights. 1 To some of the colloquies this morning about state law, New Jersey state law establishes that subpoenas do not require anyone to produce documents, and a party faces no penalties for non-production. Any legal duty to produce documents and, in this case, any disclosure of donor identities is instead wholly contingent on a future state court order requiring production. This case is a perfect illustration. The state court has repeatedly declined to order production over two years of litigation. That helps explain why Petitioner never alleged below that anyone actually has been or is objectively likely to be chilled by this subpoena. Instead, at most, the complaint alleges that the subpoena itself "may cause" donors to stop contributing. But that contingent language has never been enough for Article III. The federal government's alternative credible threat of enforcement theory of standing is even worse. State and local governments issue tens of thousands of subpoenas every year. But the federal 1 government's theory would risk turning many of these ordinary subpoena disputes into federal cases even without a First Amendment claim. That would be a remarkable break from history and tradition. No court has accepted that theory, and this Court should not be the first, particularly in a case where the question presented was itself limited to chill. Of course, plaintiffs who receive an administrative subpoena may have Article III standing in some circumstances, where, for example, the recipient faces some concrete harm or legal penalties from the moment of the subpoena's issuance or where the recipient alleges that the subpoena is connected to other government statements or actions that themselves create objective chill. Petitioner hasn't alleged anything of the sort here. I welcome the Court's questions.

Your Honor, this subpoena is a predicate under state law for the state executive branch to be able to go to a court to 1 seek a court order requiring production. We couldn't do that if we had just sent a letter request. But, in other critical respects, there's really not a difference in terms of the legal obligations that are actually imposed upon a recipient of a subpoena. Justice Thomas, I think to your questions at the outset, you had made a remark about how this subpoena doesn't look like other kinds of subpoenas that you're familiar with, and I -- I think there is some confusion in the nomenclature here. Typically, when we think about subpoenas, we're thinking about grand jury subpoenas or subpoenas that are issued by a court during civil litigation. I think an administrative subpoena is very different, and courts, as a matter of state law, have held across the country that these subpoenas themselves don't impose any obligation to produce documents from the moment of -- of the issuance of the subpoena.

So I -- I think there is 1 not a difference in terms of the change in legal obligations for Petitioner. Petitioner stands --

Yeah, I --

-- I do want to directly address that because I think that's the nub of a number of the questions this morning and a number of the colloquies this morning. So the subpoena does say exactly what you said, and it says that an individual who receives the subpoena is commanded to produce. But just a couple pages down in the subpoena -- this is at Petition Appendix 93a -- the subpoena itself says that one entirely appropriate way for a party to respond is to 1 object to some or even all of the requests contained in the subpoena. And as a matter of background state constitutional due process principles, New Jersey Supreme Court has long held that the executive branch can't be the one that's deciding on those objections.

Those are exactly --

That's not correct, Your Honor. Throughout this litigation, we have consistently taken the position that this subpoena is non-self-executing. What Your Honor may be referring to is the position that we took before the Third Circuit in the Smith & Wesson case several years ago, several years before the start of this litigation. And I'll be completely candid with the Court. We took the opposite position in that 1 Smith & Wesson case. We ultimately lost. Judge Hardiman's decision for the Third Circuit rejected that theory, and what Judge Hardiman --

Absolutely. So we think 1 there are a number of reasons why these subpoenas need to be understood as non-self-executing. Having said that, I -- I will --

Yeah, absolutely. So --

Yeah. So the New Jersey Supreme Court in Silverman v. Berkson, which is a case that's cited in the amicus briefs at 661 A.2d 1274, is a 1995 New Jersey Supreme Court case. I think the Third Circuit had that before it as well. The Third Circuit, Judge Hardiman, canvassed state practice in coming to that decision. Now I do want to be absolutely clear with the Court. If you disagree with us as a matter of state law on whether or not this subpoena is self-executing --

Absolutely, but if the --

I do think Silverman speaks very strongly to that question. I will say --

I do think there are background constitutional principles that make very clear that the executive branch --

Yeah. 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. There would be consequences that flow if the subpoena is self-executing from the moment of the issuance of the subpoena.

Your Honor, it was in --

We took that position from the start of this litigation, Your Honor.

So I think you would look to the petition -- to the JA, for example, to our state court enforcement action, where, JA 59, we're not seeking penalties for their failure to comply with the subpoena itself. All we're seeking from the -- from the state court in a production order is a obligation to produce documents. I do -- I think, to the nub of your question, Justice Alito, this is the first time that we've had to directly come across a First Amendment challenge since Smith & Wesson, which is why we haven't really raised these issues 1 prior to this litigation. We don't as a matter of course -- I do want to be clear about this -- we don't as a matter of course seek penalties for the failure to comply with a subpoena itself.

Sure. (Laughter.)

The Third Circuit held otherwise in Smith & Wesson.

We do ultimately think that Judge Hardiman got it right in Smith & Wesson. And our job first and foremost is to interpret the statutes that our legislature has given us. If the legislature decided that it wanted to give the executive branch self-executing subpoena authority, we'd be 1 happy to use that authority, but that's just not the statute that we have before us.

Yeah, ultimately, we --

That's right. And -- and Judge -- Judge Hardiman's opinion for the court ultimately canvassed state practice. It dealt with all of the arguments that we had made before the court. And I -- I will say that if, again, the question that this Court has is about the meaning of state law, I think there are entirely appropriate ways to resolve those questions, for example, by remanding the case to the Third Circuit with instructions to certify the question to the New Jersey Supreme Court, as is consistent with typical practice in cases like --

Yeah.

Yeah. So the difference between a self-executing subpoena and this subpoena, so a self-executing subpoena would impose some penalties or consequences from the moment of the issuance of the subpoena itself. So a --

Correct. Correct.

That's correct.

That would be a self-executing subpoena.

Not that because the AG has to make a request to the state court, and any production of documents, any legal obligation to produce documents, is entirely contingent on a future state court.

Yeah. It's a difficult question to answer, I think, Justice Barrett, in part because this would represent a pretty dramatic sea change in historical practice. Petitioner and the United States haven't 1 identified a single case that adopts this credible threat of enforcement theory for subpoenas in particular. So this would be a pretty extraordinary change. And I think the risk would be that federal courts would potentially be inundated by these subpoena cases, so --

Yeah.

I don't see a way to limit the United States' proposed rule just to First Amendment challenges. I think it would encompass Fourth Amendment challenges, to Justice Sotomayor's examples earlier, due process challenges, extraterritoriality challenges. Just to put this in perspective, the single state agency that is before this Court today from a single state has issued more than 500 subpoenas this year alone to all kinds of businesses, to home contractors, to car 1 dealerships, who we have reason to believe could be violating the law and so we want more information. Google, in its public disclosures, the single company, said in 2024 it alone received 50,000 subpoenas across the entire United States. You're talking about a huge volume. You're talking about many different kinds of potential federal constitutional claims. And I think all of that is why the United States is asking for a bespoke exception for its subpoenas in particular, and --

Yeah. The United States is asking for a bespoke exception for its subpoenas in particular. And I'll also say as a final note on this point that Petitioner themselves on page 22 of their reply brief says don't reach the questions about the credible threat of enforcement outside the First Amendment. You can resolve this case on chill. We agree, ultimately, chill is the right framework for resolving this case. 1 And I would think, if this Court wants to take up the credible threat of enforcement theory, it would want briefing, for example, on some of the history and tradition arguments that we had raised in our red brief and that the reply just doesn't address. And so I think that this Court can appropriately leave those questions for another day and decide this case on the basis of chill.

I don't think that, and I think that's best illustrated by the allegations that are in their complaint, as 1 well as in the supporting declarations in support of their motion for a preliminary injunction. So, if you look at their complaint allegations, all of the harms they identified are tethered to a future downstream state court order requiring disclosure, but they're not tethered to the subpoena itself. As I noted in my opening, I think the closest they get in their complaint is at Petition Appendix 137, this is paragraph 125, where they say the subpoena "may cause" people who associate with First Choice to reasonably fear that they themselves will face retaliation or public exposure. That "may cause" language has never been sufficient for Article III. The rest of the allegations in their complaint -- take a look, for example, at paragraph 73 or paragraph 76 on Petition Appendix 130 -- those allegations are focused on the harms from the disclosure of documents that identify First Choice's benefit -- donors, but all of those harms, again, are contingent on a future downstream state court --

It certainly has not in this case. I take Petitioner in their --

So I take Petitioner in their reply brief in this case to all but concede that there's not been any evidence of anyone actually being chilled by this subpoena over the two-plus years of litigation, and I think --

I absolutely think that that is something they could have pled here, but they did not plead it. And I think, if you look at the declarations that they submitted 1 in support of their motion for a preliminary injunction, I think it's the same problem. So, if you look at the donor declaration, they submitted a declaration on behalf of anonymous donors. This is at Petition Appendix 174 to 178. There's no allegation of any prospective chill for any of those -- those donors. I think the closest they get in this entire case based on this factual record to alleging chill is at Petition Appendix 177. This is the donor declaration, paragraph O, which says: "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 that's a backwards-looking statement of harm. It's not about prospective chill --

We don't think so for a couple of reasons. First --

-- this Court's decision in Lyons makes perfectly clear that a backward-facing allegation of harm isn't sufficient to --

I think that's the closest they get to standing. I do want to explain why we think it is particularly the case here that their backward-looking allegation really can't establish forward-looking --

I don't think that would be --

No, because that allegation that you noted is tethered to whether or not there will be disclosure. But I think the harms that they're identifying have to be tethered to the subpoena itself. I think this goes back to some of the colloquies earlier this morning about whether you can have standing based on the issuance of the subpoena from the moment of the receipt of the subpoena itself. If Petitioner had alleged that there were chill harms and those chill harms need to be objectively reasonable, but if they had alleged chill harms from the moment of the subpoena's issuance, I think it would be a different --

Yes, I think so. And they 1 have to be chilled by the issuance of the subpoena itself.

Yeah. So I think paragraph P suffers from the same problem. It says, "If our personal information is disclosed" --

-- "to the attorney general," that's --

It's future, but it's about a future state court order, and you --

So I -- I think that if you --

Yeah. I -- I -- I think --

-- just to be really clear about --

Just -- yeah. Just to be really clear about this, if this subpoena were considered self-executing as a matter of state law --

-- you don't even need to get to chill.

So they've got the right tense in P but that they've got the wrong thing in their cites on that.

I think that would be sufficient to allege chill, but that's not necessarily enough by itself to get to that chill being objectively reasonable. So our position in this case is that they need to do two things. They need to allege that there has been chill. I think they fail at the outset on that metric. But they also then need to allege facts indicating that that chill based on the issuance of the subpoena --

I don't think still that would be enough. That's basically the set of facts that this Court --

-- has before it.

Yeah. That's basically the set of facts that this Court had before it in Clapper. Now Clapper is most commonly understood as a case about the standing analysis that applies when there's no evidence that the government is specifically targeting an entity, but at page 413 of the Clapper decision, this Court said, even if the respondents in that case could establish that there was particular targeting of the -- of the communications of the respondents in that case, that's still not enough for standing because it is contingent on a -- on a court order. In that case, it was the Foreign Intelligence Surveillance Court's order. 1 I think, in Clapper, Justice Breyer pointed out in the dissent that there were 16 -- 1,676 applications that were made; over 98 percent of them were granted without modification. And this Court still said that we don't rest our standing theories on guesswork about the actions of independent decision-makers, particularly where those decision-makers are courts. And I --

I take that to be a different concern.

I take that concern just to be that, as this Court's decision in AFP illustrates, one factor that a court considers in the First Amendment analysis is the risk of a chilling effect, and that's relevant to the merits.

But I don't think that 1 means that you can't also consider chill for purposes of standing. It's a different kind of analysis.

Yeah. I -- I think that's right. Now I do think that there may be a limited class of cases where a party could allege that -- facts sufficient to support standing based on the issuance of a subpoena alone. And I think there are three categories of these kinds of cases. The first is where there's some kind of concrete harm from the issuance of the stand -- of the subpoena itself. And I'll come back to each of these examples if the Court wants. Second is where the subpoena forms one part of the basis for a credible threat of enforcement of the underlying statute that actually regulates the conduct of the plaintiff in the case. And then the third is, with respect to objective chill, it's been our consistent 1 position throughout this litigation that the mere issuance of a subpoena without more can't establish objective chill, but we --

So I think there is a caveat there, which --

-- brings together cases like Laird and Bantam Books, which is that if there are other government actions or other government statements that are linked to the subpoena that themselves would create an objective chill by establishing a credible threat of future harm --

Just on its own without any additional facts --

-- statements --

-- actions, yes.

Yeah, my friends on the other side don't let the actual factual allegations get in the way of telling a story about hostility here, but I think that story is just not borne out by the record evidence that's been offered here. So, ultimately, I think, at the end of the day, what they're identifying are policy agreements -- disagreements that they have with the attorney 1 general. That's never been enough to establish hostility. It's never been enough to establish standing. I think, with respect to the specific allegations, Justice Barrett, that you're noting, they point to a consumer alert that we had issued about crisis pregnancy centers, and they also point to a reproductive rights strike force. I'll take each of those points in turn. I think, first, with respect to the consumer alert, which is on JA 357 to 362, all that consumer alert is doing is telling people what the mission of organizations like crisis pregnancy centers are. I don't take Petitioner to be disputing the -- the point that we make in that consumer alert, which is that crisis pregnancy centers are entities that seek to deter women from accessing abortion care. They do take 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 I don't think it's evidence of hostility to have a targeted consumer alert that identifies a potential risk 1 of misrepresentations and then a subpoena that's specifically targeted to address whether those misrepresentations occurred. If it were otherwise, then every time the state issues a consumer alert about car dealerships or home contractors, that would somehow establish hostility.

Yeah.

It depends on what that context is, but --

So --

Yes, we do. And -- and maybe I could just illustrate with one or two examples of what might be sufficient to establish standing. So, if there were statements made by a public official who's issuing the subpoena that they want to publicly expose donors to a particular organization or, for that matter, to all nonprofit organizations, I think that's the kind of credible threat of -- of future harm that could be sufficient to get you in the door for a challenge to the subpoena. I think same thing if there are statements or actions specifically targeting the donors for enforcement, saying we want to bring to justice not just this organization but all of its supporters, I think that could be sufficient. We just don't have anything like that in the factual record here. Turning back if I can --

We don't think so for exactly the reason I had noted in response to Justice Kagan's question earlier. In that circumstance, the issuance of a state court order requiring production would still be too contingent.

As I --

As I noted earlier, we do think that there are a couple of categories of cases where they might be able to go to court based on the issuance of the subpoena alone. I had noted a first category where --

Sure.

So let me maybe address that preclusion point head on. We think there are a couple of reasons why the fears of the preclusion trap that this Court identified in Knick just don't apply in this context. For one thing, this Court has always made clear that you don't bend the rules of Article III standing based on potential fears of preclusion. And in cases like Whole Woman's Health, for instance, this Court noted that there may not always be available a federal forum for a federal constitutional claim challenging --

So I think there could be a narrow set of circumstances. I'll grant you, 1 here, we think they would be precluded under --

-- under New Jersey principles of preclusion. Of course, under the Full Faith and Credit Clause, you apply state preclusion principles. And there might be other states that have different kinds of rules related to preclusion. But I think, in part, because there are some circumstances, as I -- as I noted before -- and, again, I don't think this case fits into this bucket -- but, because there are some circumstances where a party would have access to a federal forum, I don't think it is invariably true that a party would necessarily be precluded just by the issuance of a subpoena.

We've been very clear about this from the outset. Our entire purpose in asking for the category of donor information that we asked about was to evaluate whether any donors themselves might have been deceived by the representations on the donation pages maintained by First Choice. I -- I'm happy to disclaim from the podium here we have no interest in seeking enforcement against any of these donors. We have no interest in publicly disclosing any information about these donors. It is purely for the purpose -- we are asking for that information purely for the purpose of evaluating whether donors might have been harmed.

Yeah, we don't dispute that those precedents would supply the relevant framework. I think that's a merits question, not a standing question. I think this Court's decision in Americans For Prosperity would 1 supply the relevant framework, although I would note -- and this, again, I think goes to the merits analysis, not to the standing analysis, so I don't think the Court needs to consider it here, but one of the modes of seeking information about donors that this Court pointed to as more narrowly tailored than the blunderbuss regulation that was at issue in AFP was a targeted subpoena towards a particular entity where the state has concerns about potential deceit or misconduct of some sort.

We certainly had complaints about crisis pregnancy centers that Petitioner --

So I think we've been clear from the outset that we haven't had complaints about this specific pregnancy center.

I -- I -- I -- I don't think -- I don't think that's correct, Your Honor. I think we had carefully canvassed all of the public information that is provided on the website of First Choice in making a determination that we wanted to initiate an investigation.

I -- I don't think that's true, Your Honor. I think, for example, you could take a look at a comparison between the donation page for First Choice that we have carved out from the very beginning of this case --

We had no complaints, but the state governments, federal government initiate investigations all the time in the absence of complaints where they have a reason to suspect that there could be potential issues 1 of legal compliance. And, look, it could be the case based on our investigation when we look at documents, when we look at information, that, ultimately, we'll determine that First Choice isn't liable for any violation of the law, but that's --

So, Your Honor, I point you to the Turner declaration, which is at pages 400 to 401 of the Joint Appendix, which lays out the predicate for the state's investigation of First Choice, and we had concerns in four buckets. 1 We had concerns about potentially misleading donors. We had concerns about the unlicensed practice of medicine. We had concerns about patient privacy practices. And we had concerns about potentially misleading or untrue medical statements. So I think we had a more than ample basis to initiate this investigation.

And, again --

We had no complaints, but I think that, Your Honor, that goes at most to the merits. That doesn't go to the standing analysis.

So, Justice Kagan, I was trying to respond directly to your hypothetical that posited the 98 percent grant rate. We don't think that's actually what happens in state court. And you could look at the facts of this very case to see that. The state has sought an enforcement order from the state court for more than two years. The state court has repeatedly declined to order production. Instead, it's ordered the 1 parties at Petition Appendix 63 to 66 to negotiate and to narrow the scope of the subpoena.

Your Honor, I think this Court has always said --

Yeah. Your Honor, I think the facts here are pretty far afield of that. Smith & Wesson itself at page 894 of that opinion, Judge Hardiman noted that there was far more for the state court to do than merely implement a predetermined outcome. 1 You can see this in how other courts have handled subpoena processes in -- in other states. For example, Twitter at page 1196 of the Ninth Circuit opinion said that enforcement is not a rubber stamp of -- of the process. So I think the facts here are -- are -- are just different in kind. And my friends on the other side haven't alleged anything about success rates, for example, for subpoena enforcement. And as a practical matter, I think the facts of this very case illustrate that there's not a predetermined outcome to this process. And I think, from the perspective of Article III standing, this Court has always said that you look at whether or not there's a contingent future action that the harm depends on. And, here, there is a contingent future action it depends on.

Absolutely. Absolutely, Justice Kavanaugh. We think there is certainly a difference between our position and the ACLU's position in that brief but that that difference 1 is not as great as it might appear on its face. In particular, as we noted this morning, we think that while the issuance of a subpoena standing alone by itself isn't enough to get someone in the federal courthouse doors, you could have situations where there are other government statements or other government actions that themselves create an objective chill. That might, together with the subpoena, be sufficient to establish standing. And I take it that that's really the thrust of the concern that the ACLU has, is where there's some clear factual record, where the government, for example, has made statements or actions saying we're going to go after donors, we're going to publicly disclose their information, we want to target them, I -- I -- I think we would agree in those circumstances that there's standing. The problem is that the factual allegations just don't support that in this case.

Mm-hmm.

Your Honor, this Court has seen that exact litigation in cases like Bates and Shelton, both of which involved demands for disclosure, where there was a penalty that immediately attached --

Mm-hmm.

Yeah.

The factual premise I think is not accurate there. Overwhelmingly, states use non-self-executing subpoenas.

I -- I wouldn't frame it in exactly those terms, but I think we're looking at whether or not the donors have potentially been deceived. And I think, if you look at --

Yeah, that -- that's right, Your Honor.

Yeah.

Yes, Your Honor.

Thank you, Mr. Chief Justice. So one of the questions is about self-executing and the comparison to this statute. I would urge Your Honors to look at Footnote 1 of the response brief, page 6. That catalogues a list of statutes that are self -- non-self-executing. Excuse me. That's presumably what Judge Hardiman was thinking about in the Third Circuit decision. They read very differently from the subpoena -- or, 1 excuse me, the state law. They do not say failure to obey means you can get contempt or loss of a business license. In addition, Your Honor, Justice Barrett, you asked about the state court proceeding and the representatives -- representations of the attorney general. I would point you to JA 50, 53, and 59. At each of those pages, the attorney general represented that the mere failure to hand over donor names and the other documents demanded by the subpoena constitute a violation of three different state laws. That's in this case to the state court. Additionally, Your Honor, in response to Justice Gorsuch's questions, I believe my friend from the other side conceded that this basically means that no non-self-executing subpoena gets into federal court. That's the very same litigation requirement imposed by the lower courts. It violates this Court's decision in Knick. It means that every challenge would not only be disbarred -- or disallowed at the opening stages, but it would also be precluded later on. 1 The attorney general in this case -- this is at JA 143 -- argued preclusion the second time we were before the district court. They successfully prevented Smith & Wesson from ever having the merits of their claim determined in federal court by arguing preclusion. Again, that's inconsistent with Section 1983. It violates this Court's decision in Knick. And it's contrary to this Court's virtually unflagging obligation to exercise jurisdiction where it has been given. With respect to the non-self-executing nature of the subpoena, we want to make clear that even a non-self-executing subpoena can impose an objective chill. The test is whether a person of ordinary firmness, that sort of common-sense approach you were talking about, Justice Kagan, would terrify normal donors, mom-and-pop donors. If you look at the allegations in this case, some donors gave as little as $10. Those folks are going to be worried about a state attorney general, the highest law enforcement officer in the country, demanding their names, phone numbers, addresses, places of employment, so that he can 1 contact them about a donor website. And to speak about that donor website -- it is at our opening brief, page 10 -- it is not in the least misleading. It pictures smiling faces of babies and their families. There's no question that it belongs to something like Planned Parenthood. In addition, if the attorney general is really worried about donor deception, it doesn't need to show -- it doesn't need to contact those donors. Instead, the objective standard applies under the Consumer Fraud Act. All the attorney general needs to do is prove a reasonable person would be -- be deceived. He cannot possibly do that today.