Amicus Curiae Brief — First Choice Women's Resource Centers, Inc., Petitioner v. Jennifer Davenport, Attorney General of New Jersey

Supreme Court briefFeb 24, 2025

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No. 24-781

In the Supreme Court of the United States

FIRST CHOICE WOMEN’S RESOURCE

CENTERS, INC.,

Petitioner,

MATTHEW J. PLATKIN,

Attorney General of New Jersey,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

BRIEF AMICI CURIAE OF CHRISTIAN LEGAL SOCIETY,

GATEWAY PREGNANCY CENTER, AND OBRIA MEDICAL

CLINICS PNW IN SUPPORT OF PETITIONER

________________

LORI KEPNER

Counsel of Record

STEVEN T. MCFARLAND

LAURA NAMMO

CHRISTIAN LEGAL SOCIETY

CENTER FOR LAW &

RELIGIOUS FREEDOM

8001 Braddock Rd., Ste. 302

Springfield, VA 22151

(703) 642-1070

lkepner@clsnet.org

Counsel for Amici Curiae

QUESTION PRESENTED

Amici agree with the Petitioners’ statement of the

Question Presented:

Where the subject of a state investigatory demand

has established a reasonably objective chill of its First

Amendment rights, is a federal court in a first-filed

action deprived of jurisdiction because those rights

must be adjudicated in state court?

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

INTERESTS OF AMICI CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ............................................................... 3

The Third Circuit Erred in Holding

That This Case was not Ripe. .............................. 3

A. This narrow view of ripeness is

unworkable and unjust for

multiple reasons. ............................................. 5

B. The narrow view of ripeness is not

consistent with this Court’s precedent. .......... 8

II. Ripeness Is all the More Important

When First Amendment Claims are

Raised. ................................................................. 11

III. The Experience of Two Amici Bear

This out. .............................................................. 13

A. Obria Medical Clinics PNW ..............................14

B. Gateway Pregnancy Center..............................17

iii

IV. This Case Provides the Court With

the Opportunity to Curtail State

Actors’ Chilling and Obfuscation of

Constitutional Rights. ........................................ 21

CONCLUSION .......................................................... 24

TABLE OF AUTHORITIES

Page(s)

Cases

Americans for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) ........................................ 12, 13

Bates v. City of Little Rock,

361 U.S. 516 (1960) .................................... 6, 21, 22

Bantam Books v. Sullivan,

372 U.S. 58 (1963) .......................................... 20, 22

DeJonge v. Oregon,

299 U.S. 353 (1937) .............................................. 11

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................. 18

Elrod v. Burns,

427 U.S. 347 (1976) ................................................ 9

Fed. Trade Comm’n v. Am. Tobacco Co.,

264 U.S. 298 (1924) ............................................ 7, 8

Fiske v. Kansas,

247 U.S. 380 (1927) .............................................. 11

Frederick Douglass Found. v. District

of Columbia,

82 F.4th 1122 (D.C. Cir. 2023) .......................... 5, 6

Knick v. Twp. of Scott,

588 U.S. 180 (2019) .............................................. 10

Cases--Continued

Louisiana ex rel. Gremillion v. NAACP,

366 U.S. 293 (1961) ......................................... 6, 21

Nat’l Inst. for Family & Life Advocates

v. James,

2024 WL 3904870 (W.D.N.Y. Aug. 22, 2024) .... 6, 7

New York Times v. Sullivan,

376 U.S. 254 (1964) ........................................ 20, 22

NRA v. Vullo,

602 U.S. 175 (2024) ........................................ 20, 22

Obria Grp., Inc. v. Ferguson,

2025 WL 27691 (W.D. Wash. Jan. 3, 2025) ...14-16

Peachlum v. City of York, Pennsylvania,

333 F.3d 429 (3rd Cir. 2003) .......................... 10, 11

Presbytery of New Jersey of Orthodox

Presbyterial Church v. Florio,

40 F.3d 1454 (3rd Cir. 1994) .............................. 6, 9

R.A.V. v. St. Paul,

505 U.S. 377 (1992) ............................................... 7

Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) .................................................. 9

Shelton v. Tucker,

364 U.S. 479 (1960) ......................................... 6, 12

Cases--Continued

Smith & Wesson Brands, Inc. v. Attorney

Gen. of New Jersey,

105 F.4th 67 (3rd Cir. 2024) ..................... 2-5, 9, 21

Smith & Wesson Brands, Inc. v. Attorney

Gen. of New Jersey,

27 F.4th 886 (3rd Cir. 2022) ........................ 2, 9, 10

Sorrell v. IMS Health, Inc.,

564 U.S. 552 (2011) .............................................. 21

Steffel v. Thompson,

415 U.S. 452 (1974) ............................................ 8, 9

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................................ 6, 8

Texas v. Johnson,

491 U.S. 397 (1989) .............................................. 11

Twitter, Inc. v. Paxton,

56 F.4th 1170 (9th Cir. 2022) .............................. 11

U.S. v. Alvarez,

567 U.S. 709 (2012) ........................................ 11, 12

U.S. ex. rel. Ricketts v. Lightcap,

567 F.2d 1226 (3rd Cir. 1977) ................................ 9

vii

Statutes & Rules

Fed. R. Civ. Pro. 37(a)(3) .......................................... 13

N.J. Stat. Ann. § 56:8-3 ............................................... 3

Wash. R. Civ. Pro. 37(a)(4) ....................................... 13

Other Authorities

Complaint, Obria Grp., Inc. v. Ferguson,

No. 3:23-cv-06093 (W.D. Wash. 2024) ............14-16

Declaration of River Sussman, Obria Grp.,

Inc. v. Ferguson No. 3:23-cv-06093

(W.D. Wash. 2024) .................................. 14, 16, 17

Democrat Bob Ferguson wins Washington

governor’s race, NPR, Nov. 5, 2024 ..................... 15

Gateway.org ............................................................... 17

Open Letter from Attorneys General

Regarding CPC Misinformation

and Harm, Oct. 23, 2023 .......................... 14, 15, 18

Press Release, Acting AG Platkin Establishes

“Reproductive Rights Strike Force” to

Protect Access to Abortion Care for New

Jerseyans and Residents of Other States

(July 11, 2022) ...................................................... 18

INTERESTS OF AMICI CURIAE1

Christian Legal Society (“CLS”) is a nonprofit,

nondenominational

association

Christian

attorneys, law students, and law professors. CLS

defends the sanctity of human life and the First

Amendment rights of all Americans.

Gateway Pregnancy Center and Obria

Medical Clinics PNW are organizations who have

faced targeted state actors’ investigative efforts that

are considered non-self-executing. Gateway and Obria

believe their constitutional rights either have been or

may be infringed, and this narrow view of ripeness

would very likely prevent them from vindicating their

constitutional rights.

SUMMARY OF ARGUMENT

Amici respectfully request that this Court grant

the petition for certiorari to resolve an important

circuit split regarding whether ripeness should be

applied, the result of which is to prevent federal courts

from hearing important constitutional questions. The

Third Circuit narrowly reads ripeness in this case to

mean that no harm can exist when a state utilizes its

non-self-executing investigatory tools to target

nonprofit organizations that have disfavored

viewpoints. This application will inevitably lead to

permanent exclusion from federal court because of a

preclusion trap. The standard for ripeness the Third

1 No party or party’s counsel authored this brief, in whole or in

part. No person except amici contributed to the costs of its

preparation. Counsel for amici notified counsel for all parties on

February 11, 2025, of their intention to file this brief.

Circuit used will allow bullying by state actors against

small nonprofits while preventing the latter from

timely raising their First Amendment rights. It will

incentivize state actors to harass organizations they

disfavor by dragging out their investigative activities

and repeating their threats, rather than asking courts

to enforce their subpoenas or demands, and will result

in inconsistent outcomes.

Small nonprofits that are being targeted for

holding disfavored views will be uniquely vulnerable,

for they lack revenue from any commercial activity

and are often unable to afford legal support adequate

to withstand state attorneys general. Under the

standard articulated by the Third Circuit here, such

organizations may not look to federal courts to

vindicate their First Amendment rights against state

intimidation that chills their message, mission, and

donor support.

Under the Third Circuit’s narrow reading, a claim

is not ripe as long as the state actors do not move to

enforce the investigative tool in court and, once done,

until the court issues an order compelling compliance.

Implausibly, the panel below imagined a fantasy

where “Plaintiff simply could decline to comply with

the Subpoena with no legal consequence.” Pet. App.

7a. Then, even after the state moved to enforce, there

still was not “enough of an injury” shown when the

state court had not yet ordered compliance. See Pet.

App. 4a. By the time the state court does force

compliance, however, the constitutional claims would

1) be waived if the party did not raise them in state

court, and 2) be barred by res judicata if the party does

raise them, as occurred in the Smith & Wesson cases.

See Smith & Wesson Brands, Inc. v. Attorney Gen. of

New Jersey, 105 F.4th 67, 70 (3rd Cir. 2024).

This Court can prevent federal courts from being

thus stripped of jurisdiction over important

constitutional questions. Otherwise, it will lead to

completely disparate outcomes based entirely on a

state AG office’s tactics rather than on a meaningful

consideration of whether constitutional rights have

been violated.

ARGUMENT

I. The Third Circuit Erred in Holding That This

Case was not Ripe.

This case started with the New Jersey AG’s office

seeking to target pregnancy centers through

investigative burdens, claiming broad authority

under the New Jersey Consumer Fraud Act, N.J. Stat.

Ann. § 56:8-3. The AG issued burdensome subpoenas

based on political considerations, not consumer

complaints. Pet. 8. The evidence of targeting is strong.

Pet. 6-7. The subpoena included requests for names of

donors, staff, and messaging. Pet. 8, 10. The same AG

and Washington’s AG have inflicted the same tactic

on amici Gateway and Obria, respectively.

First Choice filed in federal court to raise its First

Amendment claims and request injunctive relief prior

to the subpoena’s compliance date. Pet. at 10. The

district court dismissed the action, holding that the

claims were unripe because the subpoena was nonself-executing and that the claim would not be ripe

until the court enforced the subpoena. Pet. App. 80a.

The AG then started an enforcement action in state

court; the latter held the subpoena was enforceable,

though it declined to decide the constitutional

objections raised. Pet. App. 156a-157a. First Choice

provided some documents but did not disclose its

donor information. The AG then requested sanctions

against First Choice, but the state court determined

to wait for the state court appeal. Pet. App. 62a. When

First Choice went back to federal court after both

parties agreed the federal suit was ripe, the district

court again found it unripe because the state court

had not demanded compliance “under threat of

contempt.” Pet. App. 26a.

The district court described New Jersey’s

subpoena enforcement proceedings a five-stage

process: “(1) subpoena issuance; (2) party response,

after which enforcement proceedings typically begin;

(3) motion practice; (4) appeal; and (5) forced

compliance.” Pet. App. 36a. The court concluded First

Choice’s injuries—ignoring any possible additional

evidence of harm—simply could not rise to the level of

“actual or imminent constitutional injury” before the

fifth stage when its arguments have been fully

considered and the state court is requiring compliance

under threat of contempt. Pet. App. at 42a. The court

remarkably concluded that Petitioner suffered no

“cognizable injury” at any earlier stage. Pet. App. at

38a. By holding to such a narrow “moment of

ripeness,” Pet. App. at 36a, the district court

concluded that all injuries up to that point were

hypothetical.

The Third Circuit affirmed, holding that there is

not enough injury until there is a court order directly

on point. Pet. App. at 4a. This conclusion inevitably

leads to a preclusion trap. See, e.g., Smith & Wesson,

105 F.4th at 83. Yet the Third Circuit continues to

hold that a hearing of constitutional claims in state

court is adequate. Pet. App. 5a; Smith & Wesson, 105

F.4th at 84.

This narrow view of ripeness is

unworkable and unjust for multiple

reasons.

First, the claim that the targeted investigation

produces no harm is a legal fiction, not reality, falsely

assuming neutral power dynamics and equal legal

sophistication at every stage. Yet the AG has the

gravitas of being the state’s legal enforcement office.

As such, it is familiar with all its rules, regulations

and enforcement tools, including intimidating

threats. Its actions and threats in real life hardly have

no “practical impact,” Pet. App. 37a; neither may a

little nonprofit “simply decline,” id., to respond to

threats from the state’s highest prosecutor.

Second, the lower courts’ unrealistic measure of

injury and ripeness creates different classes of cases

based, not on a different experience of harm by an

investigative target, but based on the tactic chosen by

the state officers. For example, if a state agent

enforces a statute against a party, that party may

challenge the statute on its face or as applied. See

Frederick Douglass Found., Inc. v. District of

Columbia, 82 F.4th 1122, 1138, 1142 (D.C. Cir. 2023):

The government may not enforce the

laws in a manner that picks winners

and losers in public debates. It would

undermine the First Amendment’s

protections for free speech if the

government could enact a contentneutral law and then discriminate

against disfavored viewpoints under

the cover of prosecutorial discretion.

Pre-enforcement review by federal courts is

common when constitutional harm is involved, see,

e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149,

163 (2014); Presbytery of New Jersey of Orthodox

Presbyterian Church v. Florio, 40 F.3d 1454, 1469 (3rd

Cir. 1994); Nat’l Inst. for Family & Life Advocates v.

James, 2024 WL 3904870, at *5-6 (W.D.N.Y. Aug. 22,

2024) (“NIFLA”), and this should be no different just

because it involves a state investigative process.

Protection is possible if an AG has commenced a civil

enforcement action based on claimed “misleading

and/or false statements, NIFLA, 2024 WL 3904870, at

*1; or if a legislature or regulatory agency passes a law

or regulation targeted at certain speech. See, e.g.,

Bates v. City of Little Rock, 361 U.S. 516, 524 (1960);

Shelton v. Tucker, 364 U.S. 479, 488 (1960); Louisiana

ex rel. Gremillion v. NAACP, 366 U.S. 293, 297 (1961).

Yet there is no opportunity to seek protection in

federal court if the government uses its investigative

powers to target and silence particular speakers. This

distinction is not right, and it creates perverse

incentives for government actors to misuse

investigative processes.

For example, in NIFLA, a state AG’s office

similarly targeted crisis pregnancy centers, but it

directly enforced a statute instead of first using

investigative tools. Unlike below, the district court In

NIFLA found the issue ripe and addressed the merits

of the case. 2024 WL 3904870, at *5-6 (granting

preliminary injunction to pregnancy centers against

an enforcement action by the AG because of

irreparable harm caused by likely constitutional

violations). The court found ripeness because the

court recognized that the plaintiffs were “now ‘chilled’

from making future statements out of fear of civil

enforcement by the Attorney General,” Id. at *5, and

because the AG had shown willingness to take

enforcement action. Id. at *6. The Court emphasized

the importance of its role to protect against such

government action, stating that the “very purpose of

the First Amendment is to foreclose public authority

from assuming a guardianship of the public mind

through regulating the press, speech, and religion.”

Id. at *10.

This Court has confirmed that government

regulation may not constitutionally be used

selectively to target. R.A.V. v. St. Paul, 505 U.S. 377

(1992). It facially invalidated an ordinance because

the ordinance prohibited only one viewpoint, even if

its goal would be reasonable if applied without such

targeting. Id. at 388, 393-94 (holding that a state can

prohibit obscenity, but not “only that obscenity which

includes offensive political messages”). The “practical

operation” of legal standards by a government actor

may result in “actual viewpoint discrimination.” Id. at

391.

This Court has also found constitutional harm in

an investigative context, emphasizing that the

government may not just sweep aside Fourth

Amendment rights on the hope that “fishing

expeditions into private papers” might possibly

“disclose evidence of crime.” See, e.g., Fed. Trade

Comm’n v. Am. Tobacco Co., 264 U.S. 298, 306 (1924).

This principle holds just as strongly to government

targeting through investigative means if the victim

claims that its practical operation is viewpoint

discriminatory. Such a claim should therefore be ripe.

B. The narrow view of ripeness is not

consistent with this Court’s precedent.

This Court has found Article III injury when

constitutional claims are alleged—period. It has not

ignored them to wait for a court order. In fact,

threatened enforcement implicating a First

Amendment right combined with other factors can

create Article III injury. See Driehaus, 573 U.S. at

166. In Driehaus, the Court concluded that there was

Article III injury based on a combination of threats of

administrative action and the history of similar

recurring targeting and ongoing stifling of speech. Id.

at 163-64. In finding cognizable injury, this Court

emphasized the threat of enforcement was significant

when a vendor (a billboard owner) refused to display

the plaintiff’s message because it did not want to be

associated with the group. Id. at 165. The Court also

noted the “substantial hardship” present when a

plaintiff must choose between “refraining from core

political speech” or “engaging in speech that risks

“costly Commission proceedings and criminal

prosecution.” Id. at 167-68. The Court thus recognizes

that threats of court proceedings and significant

penalties are in fact cognizable harm.

This Court has also held that someone threatened

with arrest did not have to wait until arrested to have

a ripe claim. Steffel v. Thompson, 415 U.S. 452, 459

(1974) (holding an anti-war protestor had an “actual

controversy” based on the fact that he was warned,

threatened, and saw others prosecuted). The Court

held that the federal court may rightly intervene prior

to a state court proceeding to protect a plaintiff’s

“constitutionally protected activity.” Id. at 462.

Similarly, the Third Circuit held that threat of

prosecution is concrete enough to ripen a First

Amendment claim. Florio, 40 F.3d at 1468. There the

Third Circuit panel reversed an order dismissing a

pastor’s claim about a change to a nondiscrimination

law burdening his speech and held his claim was ripe

because the state refused to assure it would not

prosecute him, making the threat “real and

substantial.” Id. The Third Circuit also correctly held

that a deprivation of constitutional rights is sufficient

harm for ripeness purposes. See, e.g., U.S. ex rel.

Ricketts v. Lightcap, 567 F.2d 1226, 1232 (3rd Cir.

1977) (looking at the “practical impact on the

litigants” of the action taken by the prison official and

holding the prisoner alleged sufficient constitutional

injury).

When constitutional harms are involved, such

harms should not be disregarded based on procedural

posture. In fact, Plaintiffs here are irreparably

harmed each day that their First Amendment

freedoms are infringed. See Roman Cath. Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020); Elrod v.

Burns, 427 U.S. 347, 373 (1976). The strange posture

of this case (and the Smith & Wesson cases) should not

prevent courts from asking the right questions to

determine ripeness because they automatically

assume there is no harm when a government official

has used a non-self-executing investigative tool. Pet.

App. 38a-39a. Interestingly, in Smith & Wesson, the

court acknowledged that Smith & Wesson “did

nothing wrong” prior to the investigation and that the

investigation was not a sanction. Smith & Wesson

Brands, Inc. v. Attorney Gen. of New Jersey, 27 F.4th

886, 892-93 (3rd Cir. 2022). Yet the court also said it

is wrongdoing punishable by the state “when it failed

to respond to the subpoena.” Id. at 893. This undoes

the idea that a party is free to ignore a subpoena

without harm. Pet. App. 41a (district court holding

plaintiff could “simply decline . . . without legal or

practical consequence”). Because the purpose of

ripeness is “to avoid expenditure of judicial resources

on matters which have caused harm to no one,”

Peachlum v. City of York, Pennsylvania, 333 F.3d 429,

434 (3rd Cir. 2003), the determination of whether

there is hardship and harm to the parties is

particularly important.

If constitutional claims cannot be considered based

on the idea that there is no harm until a state court

has ruled, important constitutional claims will end up

being precluded in federal court. That is a result this

Court has found unacceptable. Knick v. Twp. of Scott,

588 U.S. 180, 182 (2019) (holding that a property

owner could raise her Fifth Amendment taking claim

right away in federal court because requiring her to

first seek state court remedies would result in a

preclusion trap). Instead, the Knick court stated that

as soon as the taking occurred, the claim could be

brought in federal court. Id. at 181.

Accordingly, this Court should correct the

discrepancy caused by an application of the ripeness

doctrine that ignores constitutional concerns.

Otherwise, the subjects of state investigations—even

when there are claims of unconstitutional targeting—

will have to struggle to function with a “sword of

Damocles” hanging over their heads.

II. Ripeness Is all the More Important When

First Amendment Claims are Raised.

Several circuits have rightly affirmed that

ripeness and standing should be applied “less

stringently in the context of First Amendment

claims.” Twitter, Inc. v. Paxton, 56 F.4th 1170 (9th Cir.

2022); See also Peachlum, 333 F.3d at 434. This is

partly because the First Amendment itself protects

against government overreach. See, e.g., Texas v.

Johnson, 491 U.S. 397, 410-414 (1989) (holding that

the asserted state interests could not justify

suppressing the expression of a flag burner because it

found it disagreeable).

In this case, the state consumer protection

interests are broad, but the First Amendment forbids

them from being used to target and muzzle groups

based on their viewpoints. See DeJonge v. Oregon, 299

U.S. 353, 363 (1937) (holding that states may “protect

themselves” from various abuses, but that does not

mean they may “curtail[] the right of free speech and

assembly” through the application of a syndicalism

law); Fiske v. Kansas, 247 U.S. 380 (1927) (holding

unconstitutional the application of a Syndicalism Act

to convict someone advocating membership in a group

not shown to be violent); U.S. v. Alvarez, 567 U.S. 709,

716 (2012) (holding the Stolen Valor Act

unconstitutional because it targeted falsity in speech

only about a particular subject). Even when

considering claims of fraud, courts must be careful not

to stifle speech because even false statements are only

outside First Amendment protection if they involve

knowing or reckless falsehood. Id. at 719.

In addition, First Amendment violations involve

unique harm and may not be backhanded in an

investigative context. Shelton, 364 U.S. at 485-86

(holding unconstitutional a state affidavit condition

on employment for schoolteachers requiring them to

reveal every organization of which they are

participants). In Shelton, the Court acknowledged the

state right to investigate teacher competence but

narrowed the scope of its authority to protect

association rights. The state must avoid “means that

broadly stifle fundamental personal liberties when

the end can be more narrowly achieved.” Id. at 488.

First Amendment rights require protection in all

contexts. The use of broad investigative authority to

silence disfavored viewpoints is particularly

problematic. There is the potential of politically

motivated and constitutionally suspect practices, and

a significant First Amendment chill is likely. See

Americans for Prosperity Found. v. Bonta, 594 U.S.

595, 608 (2021) (emphasizing the need for narrow

tailoring of government action in situations of

compelled disclosure). In Bonta, this Court

emphasized that when the First Amendment is in

play, then just identifying an important state interest

is not enough; narrow tailoring is required. Id. at 609.

The government “may regulate in the First

Amendment area only with narrow specificity.” Id. at

610 (cleaned up).

III. The Experiences of Two Amici Bear This out.

Both Obria Medical Clinics PNW and Gateway

Pregnancy Center can provide personal examples of

the concrete harm caused by unfounded targeted

investigations. Their experiences may not fairly be

characterized as “conjectural or hypothetical,” but

rather as “concrete and particularized” and an “actual

controversy.” They both received non-self-executing

investigative documents from their respective state

AG, followed by repeated phone calls, letters,

pressure, and threats. The documents themselves

threatened enforcement if the recipient fails to obey,

emphasizing that the choice to ignore would make the

subsequent enforcement effort more severe.2 These

government actions (not just potential future

enforcement) resulted in specific, negative impacts to

each ministry’s activities and speech. For these amici,

it was not a potential, hypothetical impact but an

actual present hardship.

2 For example, in amicus Obria’s case, Washington law threatens

monetary sanctions if the party receiving the Civil Investigative

Demand (CID) does not voluntarily comply unless “opposition

was substantially justified.” Wash. R. Civ. Pro 37(a)(4); see also

Fed. R. Civ. Pro. 37(a)(5). It is, therefore, not a neutral option to

ignore the official demand from the state. In addition, the

subpoena duces tecum from the New Jersey AG to amicus

Gateway repeated twice on the first two pages that “Failure to

comply with this Subpoena may render you liable for contempt

of court and such other penalties as are provided by law.”

A. Obria Medical Clinics PNW.

Obria has served communities in the state of

Washington for over forty years. It has never been

informed of a complaint against it, and, as an AAAHC

(Accreditation Association of Ambulatory Health

Care) clinic, it operates with accountability to the

highest standards of health care. Obria Grp., Inc. v.

Ferguson, No. 3:23-cv-06093 (W.D. Wash. 2024), ECF

No. 1, at 6 (“Obria Complaint”). This standard of

integrity carries over to all marketing practices.

The Washington Attorney General’s Office

targeted Obria in 2022. The AG issued a “consumer

alert” and then executed his agenda to target

pregnancy centers. Obria received a CID in May 2022.

See Obria Grp., Inc. v. Ferguson, 2025 WL 27691, at

*1 (W.D. Wash. Jan. 3, 2025). The 35 interrogatories

demanded client, donor, financial, staffing and

volunteer information dating back to 2010. Obria

responded to the CID with over 1,500 pages of

information. Obria Complaint, at 19-20. Dragging out

the process, the AG twice served deficiency letters,

demanding supplemental answers, which Obria

provided. Id.; see also 2025 WL 27691, at *1. When the

AG uncovered other groups connected with Obria, it

then issued them CIDs as well. Declaration of River

Sussman, Obria Grp., No. 3:23-cv-06093 (W.D. Wash.

2024), ECF No. 48, at 2 (“Aug. 26 Declaration”).

At no time was a complaint against, or violation

by, Obria ever identified. This continued and

intensified threat made clear the purpose behind the

onerous, interminable investigation demands. The

Washington AG’s office had a clearly stated

commitment to use “consumer protection laws” to

target pregnancy centers. Open Letter from Attorneys

General Regarding CPC Misinformation and Harm,

Oct.

23,

2023,

(available

https://perma.cc/DL74-3K6L).

This politically motivated targeting was a blatant

attempt to use what should be neutral investigative

powers intended to ensure protection for the public as

a tool to intimidate and silence an organization whose

messaging and practices the AG believed were

contrary to his policy and political goals.3 The AG’s

baseless and viewpoint discriminatory investigation,

along with his seeming dissatisfaction with the

massive amount of information Obria provided,

prompted Obria to file a complaint on November 29,

2023. Obria Complaint, at 1. Yet the legal process that

unfolded ignored the abusive tactics, and the court

concluded that Obria’s speech was not chilled. Obria

Grp., 2025 WL 27691, at *6-7. The district court said

that because the AG did not bring an action to enforce,

and the CIDs in Washington are considered non-selfexecuting, enforcement was “merely hypothetical”

and that every action Obria took in response to the

CIDs was “voluntary,” making its injuries “selfinflicted.” Id. at *8.

Obria in fact suffered significant and ongoing

harm as a direct result of the AG’s intense targeting.

First, Obria had multiple First Amendment harms,

including chilling of speech. It discontinued operating

Notably, Washington AG Bob Ferguson successfully ran for

governor around the same time this case was progressing. See

Democrat Bob Ferguson wins Washington governor’s race, NPR,

Nov. 5, 2024.

its website and instead relied upon the larger Obria

Group website to list its services. Obria Complaint, at

21. Obria also self-censored by no longer making

public statements about Abortion Pill Reversal (APR)

because of fear of reprisal, even though it had a First

Amendment right to speak. Id. The court, however,

brushed aside Obria’s evidence that the investigation

directly caused it to change its speech and stop

distributing materials about the safety and efficacy of

APR, labeling them “conclusory allegations” instead of

recognizing they represent chilled speech. Obria Grp.,

2025 WL 27691, at *7.

Second, Obria faced associational harm, as several

vendors stopped working with Obria because of the

risk that the state government would come after them

because of their association with Obria. Obria

Complaint, at 19. The vendors, all who resided outside

of Washington, had received CIDs from the

Washington AG requiring their time and expense to

respond. Id. at 19-20. The district court, however, said

such losses were “voluntary choice based on

speculation,” and that it was simply “not a concrete,

legally cognizable harm.” Obria Grp., 2025 WL 27691,

at *9.

Third, Obria suffered financial harm. When Obria

disclosed to its insurer—based on its annual renewal

application questionnaire—it had received CIDs from

the state, the insurer denied the coverage renewal

“[d]ue to the claims.” Aug. 26 Declaration, at 3. Obria’s

broker eventually found a different insurer with a

premium “nearly five times” the previous annual

premium. Id. When this financial consequence came

to light during the course of litigation, and the AG’s

legal team was questioned in a hearing before the

judge, the AG’s office agreed to write a letter

specifically “acknowledging that he had closed his

investigation.” Id. at 27.

This blatant attempt to moot the case

demonstrates the imbalance of legal sophistication

and options that is in play, especially when it involves

some of the state’s best attorneys up against small

nonprofits who often operate with a workforce made

up primarily of volunteers. Such efforts at legal

harassment intended to silence disfavored viewpoints

both disrupt the work being done by these nonprofit

organizations and involve crippling expenses.

B. Gateway Pregnancy Center.

Gateway Pregnancy Center of New Jersey also

experienced significant demonstrable harm because of

the subpoena it also received. Gateway is a religious

organization with evangelism as its central purpose.

Its volunteer training focuses on spiritual

qualifications and the ability to share the gospel; it

measures its success as a ministry by how many

clients heard the gospel. Gateway’s materials are

infused with Scripture, and it has ministry

relationships with seventy five churches. See, e.g.,

Gateway.org. When men or women in crisis come

through its door, Gateway focuses on loving and

caring for their needs—spiritual, emotional, and

physical. Gateway shares medical advice only by

pointing to the links and resources of other

organizations and experts. It does not present itself as

an expert in APR or any other medical procedures,

keeping its gospel-centered focus.

The facts predating the subpoena provide

important context for the targeting of pregnancy

centers. The AG established a “Reproductive Rights

Strike Force” in July 2022, the month after Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215 (2022),

was decided. See Press Release, Acting AG Platkin

Establishes “Reproductive Rights Strike Force” to

Protect Access to Abortion Care for New Jerseyans and

Residents of Other States (July 11, 2022),

https://www.njoag.gov/acting-ag-platkin-establishesreprodictive-rights-strike-force-to-protect-access-toabortions-care-for-new-jerseyans-and-residents-ofother-states/. In October 2022, Gateway was targeted

and “strong-armed” by state officials into registering

as a charity for the first time. In its decades of

ministry in New Jersey since being incorporated in

1989, Gateway had never before been told to register,

presumably because it qualified as exempt as a

religious organization. Gateway’s director called the

state and tried to clarify that Gateway, as an

organization “established for religious purposes,”

should not have to be registered. Gateway had never

had any complaints filed against it and said publicly

that it did not offer any medical services. The state

repeatedly told the director that Gateway must now

Gateway did not register. Then, the AG staff walked

him through the registration process. Gateway

became a registered charity in June 2023, and the

trap was sprung. A couple months later, in November,

the same office issued the subpoena to Gateway, right

after the AG co-authored the open letter signed by 16

state AGs pledging action against them. Open Letter,

supra, at 1.

When served with the subpoena, Gateway sought

legal advice and had a volunteer attorney who spoke

to the AG’s office on its behalf. The AG sent emails

continuing to pressure Gateway and threatening the

use of additional means “to obtain compliance.” At one

point, in discussing if Gateway should tie its fate to

the AG’s litigation with another pregnancy center

(Petitioner First Choice Women’s Resource Centers),

the AG drafted a proposed agreement that included

language that, in exchange for a delay in the

enforcement of its subpoena, Gateway would agree it

“will not assert any constitutional or other objections

that are similar” to those raised by the other

pregnancy center. Gateway sought advice from new

counsel and refused to sign away its rights in this

manner.

This targeted investigation has harmed Gateway.

First, the threat in the subpoena that Gateway would

face penalties if it did not “preserve Documents and

information relevant or potentially relevant to this

Subpoena from destruction or loss” chilled Gateway’s

speech and religious practice. Gateway understood it

must not alter or update its website to avoid

additional penalties, preventing it from giving

updated information to clients, donors, and

volunteers.

Second, Gateway faced associational harm because

its board could neither find nor train new leadership.

The AG’s threat of legal action caused pressure and

uncertainty to surround all the ministry’s decisions.

The threat was not imaginary; Gateway watched

costly litigation play out against other pregnancy

centers like Petitioner. Gateway’s director had

planned to equip and train a new leader to take over

the ministry he and his late wife had carried on for

decades. Instead, his time was taken up seeking legal

counsel, gathering documents, and experiencing

anxiety over the uncertainty that prevented him from

preparing his ministry for the next generation.

Third, the targeted pressure on Gateway—and the

AG’s determination to deny Gateway’s religious

status and evangelistic nature—burdened Gateway’s

free exercise of religion. The AG’s bullying threats

distracted Gateway from its mission: to singlemindedly spread the Gospel of Christ to every

inquirer.

These unconstitutional harms are neither

hypothetical nor voluntarily self-inflicted; they are a

direct result of the targeted plan of the same AG

(Respondent).

As the stories of both amici demonstrate, the

government should not be able to suppress indirectly

what it cannot do directly. See, e.g., New York Times

v. Sullivan, 376 U.S. 254, 279 (1964); Bantam Books

v. Sullivan, 372 U.S. 58, 66 (1963) (holding

unconstitutional practices of a Rhode Island

Commission seeking to suppress and stop circulation

of certain “obscene” publications); NRA v. Vullo, 602

U.S. 175 (2024) (holding a government official violated

the First Amendment by seeking to suppress a group’s

advocacy through coercion and manipulation of other

entities). This Court should apply this principle to

prevent these unconstitutional and targeted crusades

by state AGs.

IV. This Case Provides the Court With the

Opportunity to Curtail State Actors’

Chilling and Obfuscation of Constitutional

Rights.

While ripeness is an important prerequisite for

federal court jurisdiction, the barrier must not be so

extreme that important constitutional claims may not

be heard at all. In concluding that “the Subpoena

must be enforced in an unconstitutional form before

this

Court

can

consider

the

Subpoena’s

constitutionality,” Pet. App. 31a, the district court

here created a catch-22 for Petitioners, with no way to

get to federal court to preserve their constitutional

claims. Waiting for state court enforcement of an

unconstitutional subpoena means the party must

raise its constitutional claims in state court during the

enforcement process, the state court will decide on

those claims as part of its order, and the claims will

therefore likely be precluded in federal court. See

Smith & Wesson, 105 F.4th 67.

Even if a state has legitimate policy goals, it may

not advance them through indirect means that

“restrain[] certain speech by certain speakers.” Sorrell

v. IMS Health, Inc., 564 U.S. 552 (2011) (holding a

Vermont law violated the First Amendment when it

hindered marketing communications); Louisiana ex

rel. Gremillion, 366 U.S. at 297 (“regulatory measures

. . . cannot be employed in purpose or in effect to stifle,

penalize, or curb the exercise of First Amendment

rights”). The government needs “so cogent an interest”

“to justify the substantial abridgment of associational

freedom” caused by certain disclosure demands.

Bates, 361 U.S. at 524 (holding unconstitutional

ordinances enacted to hamper civil rights

organizations by demanding the disclosure of

members). Constitutional protection, particularly

based on the First Amendment, should not vary based

“upon the truth, popularity, or social utility of the

ideas and beliefs which are offered.” New York Times,

376 U.S. at 271 (cleaned up). The Court has clarified

“[i]t is characteristic of the freedoms of expression in

general that they are vulnerable to gravely damaging

yet barely visible encroachments.” Bantam Books, 372

U.S. at 66. These rights therefore “must be ringed

about with adequate bulwarks.” Id. In Bantam Books,

the commission was not directly banning books, but

rather threatened to invoke legal sanctions. Id. at 67.

The Court said there that “the record amply

demonstrates” what the commission was trying to

do—visible when the Court “look[ed] through forms to

the substance” of their actions—and noted it

“succeeded in its aim.” Id.

This is an example of what the Court again

prohibited in Vullo, where a government official tried

to indirectly suppress First Amendment rights by

misusing the power of her office. The Court looked at

the facts and said “[o]ther allegations, viewed in

context, reinforce the [] First Amendment claim.” 602

U.S. at 193. “Ultimately, the critical takeaway is that

the First Amendment prohibits government officials

from wielding their power selectively to punish or

suppress” First Amendment rights. Id. at 198. In

Vullo, the right was speech; here, the rights are

speech and free exercise of religion and association.

The way the New Jersey AG is applying the law

here to target pregnancy centers—by wielding

investigative authority to intimidate but not fulfilling

his threat of court enforcement—fails to provide

constitutional safeguards. There is real constitutional

harm here: intimidation and exploitation of unequal

power resulting in self-censorship. Moreover, the

investigation process itself inflicts harm.

Ultimately, the Third Circuit’s ripeness doctrine

here means the opportunity of nonprofits like amici to

obtain protection in federal court from First

Amendment harms perversely depends on the state

AG. It is based not on the harm the organization

experiences, but rather on whether the government

actors decide they can accomplish their goals through

investigative pressure and threats or through filing in

court. This framework gives state investigative

agencies free rein (with no accountability other than

the political process) to launch onerous and protracted

investigations into religious organizations or

disfavored ideological organizations with threat of

sanctions—so long as they don’t ask a court to enforce

them. They can burden their enemies with official

investigative demands, drag out negotiations, and

syphon off their enemies’ energy and resources, all

without it being considered “harm.”

As noted above, two amici here have suffered

under such manipulative tactics by state actors,

including the same Respondent. Similarly situated

parties should be able to raise their constitutional

rights in federal court, even when the state actor

expertly wields his power through investigative

weapons instead of through direct statutory

enforcement.

CONCLUSION

This case is about whether or not organizations

facing significant harm from the application of state

investigative authority in a targeted, viewpoint

discriminatory manner can have the opportunity to

raise their federal constitutional claims in federal

court at all. Because Petitioners (and amici curiae)

allege that the government would not have taken

investigative action but for their disfavored protected

speech, that First Amendment right should be able to

be vindicated in federal court. An overly narrow

ripeness doctrine must not prevent that.

For the foregoing reasons, and the reasons set

forth by the Petitioners, the Petition should be

granted.

Respectfully submitted.

February 24, 2025