Supreme Court Saved the First Amendment From a Preclusion Trap

No government official should be able to harass his ideological opponents without accountability. With its decision in First Choice Women’s Resource Centers v. Davenport, the US Supreme Court has affirmed that when an organization—whatever its mission or ideology—faces a predatory subpoena, the federal courthouse doors will remain open.

In November 2023, then-New Jersey Attorney General Matthew Platkin issued a sweeping investigatory subpoena to First Choice, a faith-based nonprofit operating five locations that serve women facing unplanned pregnancies. The subpoena demanded up to 10 years of information—including the names, phone numbers, home addresses, and places of employment of the organization’s donors.

No complaint or evidence of wrongdoing triggered the investigation. Rather, First Choice and other pregnancy care centers had long been in the attorney general’s crosshairs. As one of his first official acts in office, Platkin assembled a Reproductive Rights Strike Force focused on pregnancy centers. He then coordinated with Planned Parenthood in drafting a consumer alert warning New Jerseyans about pregnancy centers. And then came his invasive subpoena.

First Choice sought relief in federal court through its Alliance Defending Freedom attorneys. It filed suit under 42 U.S.C. Section 1983, the civil rights statute Congress enacted after the Civil War that guarantees a federal forum for claims of unconstitutional treatment by hostile state officials. First Choice explained that the subpoena’s demand for donor identities chilled its relationships with its donors and thus its First Amendment right to association.

The district court dismissed the case without reaching the merits. In the court’s view, First Choice’s injuries weren’t yet “ripe.” By the court’s lights, First Choice wouldn’t suffer an injury until the state court ordered compliance under threat of contempt. But as the district court acknowledged, that same state-court order would almost certainly prevent First Choice from ever having its constitutional claims decided by a federal court.

Enter the preclusion trap. Under 28 U.S.C. Section 1738, federal courts must give preclusive effect—res judicata—to state court judgments. Res judicata ordinarily bars relitigation of claims decided by a state court as well as any claim that could have been raised in that proceeding. All of this means that if First Choice raised its First Amendment defenses in state court (or could have done so) and lost, those claims would be barred in federal court.

As First Choice argued to the Supreme Court, the lower courts’ rulings put the ministry in a Catch-22. The nonprofit couldn’t adjudicate its constitutional claims in federal court without first going to state court. But if it went to state court and lost, federal courts would be bound by the state court judgment.

That makes the federal forum guaranteed by Section 1983 an illusion. At oral argument, Justice Ketanji Brown Jackson thus noted that the state had “sort of made it impossible for [First Choice] to make their claim in federal court.”

The breadth of the coalition that sided with First Choice at the Supreme Court was also telling. Thirty-nine amicus briefs were filed in support of First Choice, ranging from the US government, 19 states, the US Chamber of Commerce, religious organizations, anonymous donors to pregnancy centers, the American Civil Liberties Union, and many other business and advocacy groups. (In contrast, only three amicus briefs were filed in support of New Jersey.) The diverse coalition supporting First Choice makes clear that abusive subpoenas aren’t an ideological issue.

First Choice’s position is also common sense. In its amicus brief, the ACLU and its co-amici explained that ordinary people don’t take a subpoena demand lightly. “Even if a subpoena targeting First Amendment activity is never enforced in court, [it] will give its targets a very good reason to clam up” and its “supporters a very good reason to abandon the cause.”

“While the ACLU of New Jersey advocates for different policy outcomes than the plaintiff in this case,” said its legal director, “we are on the same page that investigatory subpoenas seeking sensitive information put all advocacy at risk.”

And now the Supreme Court has agreed. The court held unanimously that First Choice’s First Amendment injuries—the chilling effect on its speech and associational rights caused by a demand for its donor lists—constituted an Article III injury before any state court enforcement.

As the court wrote in the opinion written by Justice Neil Gorsuch, “By restricting how First Choice may interact privately with its donors, the Attorney General’s subpoena burdened First Choice’s associational rights.”

The demand itself, issued by officials who had publicly telegraphed their contempt for pregnancy centers, was enough to make donors think twice about associating with First Choice. Organizations facing state investigatory demands are entitled to seek relief in federal court when the chilling effect materializes—not after years of state litigation consumes resources, exposes supporters, and almost certainly bars federal review.

First Choice Women’s Resource Centers didn’t set out to make constitutional history. It set out to provide material support, parenting classes, and a listening ear to women and families facing unplanned pregnancies in New Jersey. But that didn’t stop New Jersey from targeting the center and going after its donors. Now, thanks to the Supreme Court’s unanimous conclusion that the attorney general’s demand for donor information injures the nonprofit’s First Amendment rights, First Choice will finally get its day in federal court.

The case is First Choice Women’s Resource Centers v. Davenport, U.S., No. 24-781, decided 4/29/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Erin Hawley is of counsel with Alliance Defending Freedom and argued on behalf of First Choice Women’s Resource Centers at the US Supreme Court.

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