SCOTUS issued First Choice Women’s Resource Centers v. Platkin the same day as Callais, so it unsurprisingly got lost in the shuffle. A unanimous Court held that the target of a state investigative subpoena can raise a First Amendment challenge to the subpoena through a pre-enforcement federal § 1983/EpY action.
The case offers another test of neutral principles. First Choice arose from New Jersey (Blue State) subpoenaing a crisis pregnancy center (Right-leaning speaker). But Texas, other Red States, and the Trump Federal Trade Commission have targeted Media Matters and other left-leaning speakers with similar subpoenas and demands for information. Presumably First Choice allows them to purse similar pre-enforcement litigation. Media Matters pursued that position in its litigation against the FTC’s civil investigative demand.The day after First Choice, it submitted a letter notice of new authority to the D.C. Circuit (where appeal was pending). Yesterday, the parties filed stipulated dismissals of the appeal and of the civil action. MM also issued a press release announcing a settlement in which the FTC withdrew its investigatory demand, committed to forego similar demands in the future, stated in writing that MM is not the target of any investigation, and committing to pursuing any such future litigation in D.C. (rather than forum-shopping into Texas).
The Court resolved the action on standing grounds. The subpoena or demand causes constitutional injury by chilling the group’s speech and donors’ willingness to support the organization for fear of disclosure. It did not matter that no legal consequence attached to the demand until a court ordered enforcement in a government-initiated action. Unlike a statute (where existence does not cause injury and the plaintiff must show a genuine, imminent threat of enforcement), the mere existence of a subpoena or other targeted demand injures the target. The distinction in targeting makes sense–government immediately injures person or entity by singling that person or entity out through official executive or administrative action. That is different from a statute that affects all people within a class, such that any individual must show that government might enforce that law against her.
The case does indicate the ongoing stupidity of talking about standing rather than constitutional merits in these pre-enforcement cases. The Court finds an injury based on precedent (NAACP v. Alabama, Bonta, and other Civil Rights Era decisions) finding that such demands violate the First Amendment. The subpoenas in this case (or in Media Matters) “injure” only because they almost certainly violate the First Amendment. Moreover, the Court highlights that plaintiffs challenge state subpoenas under § 1983, a congressional authorization “ensuring a federal forum to citizens who claim that state
actors have violated their constitutional rights.” Section 1983 by its terms focuses the inquiry on whether the defendant deprived the plaintiff of a right, privilege, or immunity secured by the Constitution. Talking about injury independent of that constitutional right is, and remains, incoherent. Alas . . .