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

Supreme Court briefAug 27, 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 PLATKIN, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF NEW JERSEY,

Respondent.

____________________________________________________________________________________________________

On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

August 27, 2025

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... ii

INTEREST OF AMICUS CURIAE .......................................1

SUMMARY OF ARGUMENT .............................................. 2

ARGUMENT.................................................................... 5

UNDER AMERICANS FOR PROSPERITY FOUNDATION

V. BONTA, COURTS MUST APPLY EXACTING

SCRUTINY TO DONOR DISCLOSURE. ........................ 5

AFPF Held that Exacting Scrutiny is the

Proper Standard for Compelled Disclosure of

Donor Information. ........................................... 6

AFPF Relied Heavily on Precedent Protecting

Disfavored Viewpoints......................................7

Narrow Application is Not a Substitute for the

Means-Ends Requirement of Narrow

Tailoring. ...........................................................9

The Burden of Disclosure Must be

Commensurate to the State’s Need for the

Information. .................................................... 17

II. THIS CASE DEMONSTRATES THE RISK TO FREE

ASSOCIATION BY PROCEDURAL MANEUVERING TO

CIRCUMVENT AFPF V. BONTA. ............................. 21

CONCLUSION ............................................................... 23

TABLE OF AUTHORITIES

Page(s)

Cases

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ............................................. 4

Americans for Prosperity Foundation v.

Bonta,

594 U.S. 595 (2021)

......... 2, 3, 5, 7, 8, 9, 10, 13, 16, 17, 18, 19, 20, 22

Axon Enter., Inc. v. Fed. Trade Comm’n,

598 U.S. 175 (2023) ........................................... 21

Baird v. State Bar of Ariz,

401 U.S. 1 (1971) ............................................... 17

Bates v. Little Rock,

361 U.S. 516 (1960) ............................................. 8

Brown v. Ent. Merchants Ass'n,

564 U.S. 786 (2011) ........................................... 12

Buckley v. Valeo,

424 U.S. 1 (1976) ............................................... 18

Church of Lukumi Babalu Aye, Inc. v. City

of Hialeah,

508 U.S. 520 (1993) ........................................... 12

Citizens United v. Federal Election Com’n,

558 U.S. 310 (2010) ........................................... 11

iii

Dinner Table Action v. Schneider,

2025 WL 1939946 (D. Me. July 15,

2025) ............................................................ 13, 14

Doe v. Reed,

561 U.S. 186 (2010) ............................................. 7

Elrod v. Burns,

427 U.S. 347 (1976) ........................................... 21

Fed. Election Comm'n v. Wisconsin Right to

Life, Inc.,

551 U.S. 449 (2007) ........................................... 18

First Choice Women’s Res. Ctrs., Inc. v. Att’y

Gen. N.J.,

2024 WL 5088105 (3d Cir. Dec. 12, 2024) .......... 6

Gaspee Project v. Mederos,

13 F.4th 79 (1st Cir. 2021) ................ 4, 10, 11, 12

Gibson v. Florida Legislative Investigation

Comm.,

372 U.S. 539 (1963) ............................................. 8

In re Addonizio,

248 A.2d 531 (N.J. 1968)................................... 22

Independence Institute v. Williams,

812 F.3d 787 (10th Cir. 2016) ........................... 15

Louisiana ex rel. Gremillion v. NAACP,

366 U.S. 293 (1961) ........................................... 17

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ........................................... 21

McCullen v. Coakley,

573 U.S. 464 (2014) ........................................... 22

McCutcheon v. Federal Election

Commission,

572 U.S. 185 (2014) ........................................... 10

NAACP v. Button,

371 U.S. 415 (1963) .................................. 8, 9, 18

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449, 462 (1958) ................................ 5, 8

No on EE - A Bad Deal for Colorado, Issue

Comm. v. Beall,

558 P.3d 671 (Colo. Aug. 4, 2025) .................... 16

Rosenberger v. Rector & Visitors of Univ. of

Virginia,

515 U.S. 819 (1995) ........................................... 19

Shelton v. Tucker,

364 U.S. 479 (1960) ....................................... 9, 17

Sweezy v. State of N.H. by Wyman,

354 U.S. 234 (1957) ......................................... 8, 9

Talley v. California,

362 U.S. 60 (1960) ............................................... 5

Wyoming Gun Owners v. Gray,

83 F.4th 1224 (10th Cir. 2023) ............. 14, 20, 21

Constitutions

U.S. Const. Amend. I

.............. 1, 2, 3, 4, 6, 7, 8, 9, 12, 17, 18, 19, 21, 22

Other Authorities

Anna Burkes, Eternal Vigilance, Thomas

Jefferson’s Monticello (Sept. 7, 2010) ................. 2

INTEREST OF AMICUS CURIAE1

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and empowering Americans to address the

most important issues facing our country, including

civil

liberties

and

constitutionally

limited

government. As part of this mission, it appears as

amicus curiae before federal and state courts. AFPF is

interested in this case because protection of the

freedoms of expression and association, guaranteed by

the First Amendment, is essential for an open and

diverse society.

In particular, AFPF has an interest in this case

because bypassing the robust protections of AFPF v.

Bonta threatens the rights of individuals to associate

freely for whatever reason they wish—whether

temporarily to achieve a single goal, indefinitely for a

discrete but ongoing interest, or long-term with

broadly aligned organizations. Civil society requires

that Americans be open to associating at will and

changing association nimbly to solve issues or simply

to express themselves—and our Constitution protects

that freedom. Donors to a heterodox blend of

organizations may support only a portion of those

organizations’ activities or share just a single goal.

Threats to expose nonprofits’ donors place the ability

to support diverse projects and opinions at risk by

implying broad commonality among unrelated donors,

chilling participation to only those circumstances in

1 No counsel for a party authored this brief in whole or in part

and no person other than amicus or its counsel made any

monetary contributions to fund the preparation or submission of

this brief. AFPF timely notified counsel for all parties of its

intent to file this brief.

which all participants are aware of each other and

willing to shoulder the multifarious views of other

participants. Driving civil society further into

tribalism will harm us all.

SUMMARY OF ARGUMENT

The ways of attempting to circumvent First

Amendment protections are limited only by the

ingenuity of politicians and lawyers. The eternal

vigilance on which our liberty rests requires us to be

on guard against any such attempts.2

Sometimes, the peril comes from the nuanced

interplay between state and federal law, but the chill

to First Amendment rights remains the same. This

case presents the threat to nonprofit-pregnancycenter donors from an investigatory subpoena that

may evade review in federal court, leaving the

pregnancy center and its donors without First

Amendment protection and leapfrogging AFPF v.

Bonta 594 U.S. 595 (2021) (“AFPF”) and the exacting

scrutiny that applies to donor disclosure schemes.

The subpoena here was allegedly issued for the

donors’ own protection—even though not a single one

of nearly 5,000 donations reached by the subpoena

triggered a complaint. Pet. at 8 citing Pet. App. 110a.

If allowed to stand, exempting broad investigatory

demands for donor identification from constitutional

review until after associational rights have been

irreparably damaged would gut AFPF and freedom of

2 John Philpot Curran, Dublin, 1790 (“The condition upon which

God hath given liberty to man is eternal vigilance,”). See, Anna

Burkes, Eternal Vigilance, Thomas Jefferson’s Monticello (Sept.

7, 2010) available at: https://www.monticello.org/exhibitsevents/blog/eternal-vigilance/.

association for non-profits that may be disfavored by

some state’s politicians. And, although the process

employed here is different from the one in AFPF, the

chilling effect is the same.

In addition to exposing donors to politicallymotivated blowback, for donors who may support the

charity’s mission, but not police the viewpoints of

other donors, surprise disclosure and conflation with

the views of strangers imposes a high price for

exercising their right to associate with the charity.

In AFPF, the Court held that exacting scrutiny

requires narrow tailoring, or a “means-end fit”

between a disclosure mandate and the sufficiently

important governmental interest the mandate claims

to uphold. AFPF, 594 U.S. at 611, 614. In AFPF,

exacting scrutiny was applied to the California

Attorney General’s mandate for blanket disclosure of

donors to charitable organizations. Id. at 611. But

AFPF was not limited to narrow categories of charities

or particular formats of disclosure; nor did it include

loopholes allowing the government exceptions from

the First Amendment that, if publicly known, would

chill association, and if not known, would subject

donors to startling disclosure and implied association

with unrelated messages and parties.

The AFPF means-end fit seems to be challenging

lower courts with some regularity, exposing

charitable donors to unconstitutional risk. The way

AFPF was bypassed here exposes a serious loophole in

First Amendment protection where a motivated

attorney general can impose an investigatory demand

on a charity to threaten disclosure of unwilling donors

without satisfying the exacting scrutiny that should

limit such attempts.

This case represents the far extreme, bypassing

AFPF altogether; but even where AFPF is applied, the

means-ends requirement of narrow tailoring is sowing

confusion. In Gaspee Project v. Mederos, for example,

the First Circuit blessed a disclosure scheme that

replaced a means-end test with an elaborate set of

parameters regarding who would be affected by the

scheme. 13 F.4th 79, 82, 88–9 (1st Cir. 2021). Rather

than focusing on why they would be affected, Gaspee

essentially substituted narrow application for narrow

tailoring. Id. Since Gaspee was decided, it has become

a go-to precedent for those wishing to evade this

Court’s direction to use AFPF in donor disclosure

cases, spreading misapplication across circuits.

The approach here adds insult to the

constitutional injury, by subjecting donors to

disclosure “for their own protection” because the

Attorney General appears to disfavor the charity to

which they have given. This is not the First

Amendment protection envisioned by AFPF and is

contrary to this Court’s approach to the Speech Clause

of the First Amendment which rejects speech

regulations that “seek to keep people in the dark for

what the government perceives to be their own good.”

See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,

503 (1996).

If allowed to stand, this approach would add

another tool to the toolbox of those seeking to

undermine donor privacy by procedural maneuvering.

ARGUMENT

UNDER

AMERICANS

FOR

PROSPERITY

FOUNDATION V. BONTA, COURTS MUST APPLY

EXACTING SCRUTINY TO DONOR DISCLOSURE.

AFPF v. Bonta controls the New Jersey Attorney

General’s investigatory demand for donor disclosure,

yet the procedural turnings of this case threaten to

evade faithful application of its holding. Like the

“blanket demand for Schedule Bs” in AFPF, the

demand for disclosure of First Choice’s donors is

subject to exacting scrutiny. AFPF, 594 U.S. at 611.

Even if the disclosure is purportedly confidential, the

associational chill identified in AFPF applies. Id. at

616 (“Our cases have said that disclosure

requirements can chill association even if there is no

disclosure to the general public.”) (cleaned up).

“Exacting scrutiny is triggered by ‘state action which

may have the effect of curtailing the freedom to

associate,’ and by the ‘possible deterrent effect’ of

disclosure.” Id. (quoting NAACP v. Alabama, 357

U.S., 449, 460–461 (1958). See also Talley v.

California, 362 U.S. 60, 65 (1960) (“identification and

fear of reprisal might deter perfectly peaceful

discussions of public matters of importance”).

Like in AFPF, the Attorney General here asserts

an interest in preventing fraud, specifically whether

donors have misunderstood that they donated to a

pregnancy center rather than an abortion provider.

And like in AFPF, it “goes without saying that there

is a substantial governmental interest in protecting

the public from fraud.” AFPF at 612 (cleaned up). But

the informational demand here fails the means-end

test in the same way AFPF failed the means-end test

by seeking information on nearly 5,000 donations

with no identified causality between a list of donations

and the Attorney General’s hypothesis that

somewhere there might be a confused donor.3

The Attorney General tries to distinguish AFPF on

the basis that the mechanism used here to compel

disclosure is a subpoena rather than a regulation,

followed by a demand letter. Opp. at 28. That is true,

but irrelevant. The effect on donors and the chill to

their associational rights is the same regardless of

which lever the government pulls to expose them, and

the precedential foundation for AFPF includes both

regulations and investigatory demands.

The Attorney General argues that AFPF can be

distinguished from this case. Opp. at 28–29. But

whether the Attorney General could satisfy AFPF is a

distinct question from whether it must be applied. The

answer to the second question is yes. The concerns

that informed this Court’s holding in AFPF are

present here, chilling the First Amendment rights of

donors in the face of government demands to know

who is supporting a charity and why.

AFPF Held that Exacting Scrutiny is

the Proper Standard for Compelled

Disclosure of Donor Information.

AFPF was a facial challenge to a regulation

requiring charities operating in California to register

with the Attorney General’s office and disclose major

donors by filing Schedule B of their IRS Form 990 with

3 App.100a–10a; Br. of Def-Appellee at 6–8, First Choice Women’s

Res. Ctrs., Inc. v. Att’y Gen. N.J., 2024 WL 5088105 (3d Cir. Dec.

12, 2024) (No. 24-3124), Doc.43 (Attorney General’s concern was

that a donor might mistakenly believe First Choice was a proabortion organization.).

the state. AFPF, 594 U.S. at 601–02. The disclosure

requirement was not related to any specific activity,

speech, or issue, but solely for annual registration

renewal. Id. at 602. The case came before the Court

with the contours of the applicable standard of review

unsettled. Id. at 607. While the lower courts had

nominally applied exacting scrutiny, there was

disagreement over whether narrow tailoring was

required. Id. at 605.

Americans for Prosperity Foundation, a public

charity that was subject to the regulation, challenged

the blanket donor disclosure requirement on the basis

that it burdened the First Amendment associational

rights of its donors and that exacting scrutiny

required more than the lenient standard applied by

the Ninth Circuit. Id. at 602–03.

This Court held that, at the least, exacting

scrutiny applies to compelled disclosure requirements

and that narrow tailoring is a necessary element of

that standard. Id. at 607. Exacting scrutiny thus lies

between strict scrutiny, with its least restrictive

means test, and the “substantial relation” standard

noted in Doe v. Reed, 561 U.S. 186, 196 (2010), to

require narrow tailoring, but not least restrictive

means. Id. at 608.

AFPF Relied Heavily on Precedent

Protecting Disfavored Viewpoints.

The precedential bases for applying exacting

scrutiny to donor disclosure came largely from cases

protecting political speech and association disfavored

by the government, such as NAACP v. Alabama ex rel.

Patterson, because “compelled disclosure of affiliation

with groups engaged in advocacy may constitute as

effective a restraint on freedom of association as other

forms of governmental action” AFPF, 594 U.S. at 606

(citing 357 U.S. at 462). This Court also made clear

that “it is immaterial to the level of scrutiny whether

the beliefs sought to be advanced by association

pertain to political, economic, religious or cultural

matters. Regardless of the type of association,

compelled disclosure requirements are reviewed

under exacting scrutiny.” Id. at 608 (cleaned up).4 And

the government cannot bypass constitutional

protection by defining labels for new categories of

speech to exclude them from the First Amendment.

NAACP v. Button, 371 U.S. 415, 429 (1963) (“a State

cannot foreclose the exercise of constitutional rights

by mere labels”). Importantly, the precedent

underlying AFPF was not limited to regulations but

also derived from investigatory demands. Gibson, 372

U.S. 539, (legislative committee subpoena); and

4 See Gibson v. Florida Legislative Investigation Comm., 372 U.S.

539, 557 (1963) (“an adequate foundation for inquiry must be laid

before proceeding in such a manner as will substantially intrude

upon and severely curtail or inhibit constitutionally protected

activities or seriously interfere with similarly protected

associational rights.”); Button, 371 U.S. at 438 (“Broad

prophylactic rules in the area of free expression are suspect.”);

Bates v. Little Rock, 361 U.S. 516, 527 (1960) (the municipalities

have failed to demonstrate a controlling justification for the

deterrence of free association which compulsory disclosure of the

membership lists would cause”); Sweezy v. State of N.H. by

Wyman, 354 U.S. 234, 245 (1957) (“when the investigative

process tends to impinge upon such highly sensitive areas as

freedom of speech or press, freedom of political association, and

freedom of communication of ideas” compulsory process must be

carefully circumscribed.).

Sweezy, 354 U.S. at 242 (summons to testify before the

Attorney General).

Thus, exacting scrutiny squarely applies to donor

disclosure regimes, regardless of the process used,

including where, as here, the charity promotes a

viewpoint apparently contrary to the state’s.

Narrow Application is Not a

Substitute for the Means-Ends

Requirement of Narrow Tailoring.

Under AFPF, “exacting scrutiny requires that

there be a substantial relation between the disclosure

requirement

and

sufficiently

important

governmental interest, and that the disclosure

requirement be narrowly tailored to the interest it

promotes.” AFPF, 594 U.S. at 611 (cleaned up). Thus,

“even a legitimate and substantial” government

interest “cannot be pursued by means that broadly

stifle fundamental personal liberties when the end

can be more narrowly achieved.” Id. at 609 (citing

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

The narrow tailoring element is critical in cases

involving burdens on the First Amendment, even if

the burden is indirect “because “First Amendment

freedoms need breathing space to survive.” AFPF, 594

U.S. at 609 (quoting Button, 371 U.S. at 433). This

requires satisfying two factors: 1) a proper scope of

application; and 2) a means-ends fit between the

method employed and the goal. In McCutcheon v.

Federal Election Commission, a plurality of the Court

explained that “[i]n the First Amendment context, fit

matters. Even when the Court is not applying strict

scrutiny, we still require a fit that is not necessarily

perfect, but reasonable; that represents not

necessarily the single best disposition but one whose

scope is in proportion to the interest served, that

employs not necessarily the least restrictive means

but a means narrowly tailored to achieve the desired

objective.” 572 U.S. 185, 218 (2014) (cleaned up).

In AFPF, blanket donor disclosure failed narrow

tailoring because it was overbroad and lacked

“tailoring to the State’s investigative goals.” AFPF,

594 U.S. at 615. Here, the subpoena has the same lack

of connection between the demand and the alleged

investigatory interest; but that obvious flaw is

obscured by the patina of law enforcement and

reducing the scope of the demand to “only two

websites.” Opp. At 8 citing Pet. App. 4a. But that does

not satisfy a necessary characteristic of tailoring: a

means-end fit between the demand for disclosure and

the governmental interest the demand purports to

address. If anything, a targeted demand without a

close means-end fit is more dangerous, because it

allows the Attorney General to direct the burden of

disclosure toward disfavored charities and create the

misimpression that the request is narrow. But narrow

application is not the same as narrow tailoring. And,

where narrow application is discretionary rather than

based in regulation, a means-end fit is even more

crucial to protecting associational freedom from

viewpoint bias.

The peril of substituting narrow application for the

scope and means-end requirements of tailoring is

already evident in how narrow tailoring has diverged

from AFPF in recent cases.

Gaspee Project v. Mederos, for example, which was

decided after AFPF, nominally embraced AFPF but

misapplied the narrow tailoring element. 13 F.4th 79,

85 (1st Cir. 2021). Gaspee dealt with disclosure of

funding sources for independent expenditures5 and

electioneering communications.6 13 F.4th 79, 82 (1st

Cir. 2021). The Act in Gaspee required filing with the

State Board of Elections a report disclosing all

organization donors over $1,000, but it also imposed

an on-communication disclaimer identifying the five

largest donors from the preceding year.7 Id. at 83. The

asserted government interest in Gaspee was in an

“informed electorate” which it held to be “sufficiently

important to support reasonable disclosure and

disclaimer regulations.” 13 F.4th at 86. But under

AFPF it is not enough to invoke tautologies such as

demanding information for the purpose of being

informed.8 Something more is needed.

Instead of relying on a purpose-based rationale,

Gaspee resorted to a plethora of characteristics

unrelated to a means-end relationship between the

An “‘independent expenditure’ . . . ‘expressly advocates the

election or defeat of a clearly identified candidate, or the passage

or defeat of a referendum.’” Gaspee, 13 F.4th at 82–3.

6 An “‘electioneering communication’ . . . identifies a candidate or

referendum’” and “is made within sixty days of a general election

or referendum or within thirty days of a primary election.” Id. at

83.

7 Donors could opt out of the disclosure requirement by electing

that donations not be used for funding of independent

expenditures or electioneering communications. Id. at 82.

AFPF did not address disclaimers nor any other form of

compelled speech and Buckley, likewise, involved disclosure but

not disclaimers. Citizens United, which addressed mandatory

disclaimers was decided under the pre-AFPF annunciation of

exacting scrutiny and thus required only “a “substantial

relation” between the disclosure requirement and a “sufficiently

important” governmental interest.” Citizens United v. Federal

Election Com’n, 558 U.S. 310, 366 (2010).

government’s goal and the First Amendment burden

imposed. Instead, Gaspee focused on time and size

limitations—which affect the pool of speakers and

messages subject to the law but fail to explain why the

law should be applied at all. 13 F.4th at 88–9. Much

like a law that applies only to redheads or early risers

without any explanation of how narrowing the pool of

targets produces the desired end, this type of analysis

substitutes an exercise in narrow application for

narrow tailoring. But infringing the rights of a small

group is still infringement. And limiting a law based

on characteristics that do not satisfy the means-ends

requirement raises concerns that the law may be

unconstitutionally underinclusive. Church of Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543

(1993) (“The ordinances are underinclusive for those

ends. . . . The underinclusion is substantial, not

inconsequential.”); Brown v. Ent. Merchants Ass’n,

564 U.S. 786, 802 (2011) (“The consequence is that its

regulation is wildly underinclusive when judged

against its asserted justification, which in our view is

alone enough to defeat it. Underinclusiveness raises

serious doubts about whether the government is in

fact pursuing the interest it invokes, rather than

disfavoring a particular speaker or viewpoint.”).

Having “tailored” the law to irrelevant

characteristics, Gaspee went a step further—blessing,

rather than condemning as it should, the statutory

demand that donors silence themselves by opting out

of constitutionally protected messaging to avoid being

outed by the organizations to which they donate. 13

F.4th at 89. Donors could avoid exposure under the

law by either limiting the size of their donations or by

opting out of allowing their donations to be used for

the restricted forms of speech. Id. Reliance on self-

censorship to excuse an unconstitutional law creates

a moral hazard by allowing constitutional protections

to be bypassed by shifting the burden to the speaker.

Nothing in AFPF endorses that approach.

Thus while Gaspee purported to adopt the exacting

scrutiny standard from AFPF, its analysis

misapprehended what it means for a law to be

“narrowly tailored to achieve the desired objective,”

594 U.S. at 609, and created precedent in the First

Circuit replacing the means-end test of narrow

tailoring with a narrow application test that evades

causation by focusing on who rather than why.

Gaspee’s distorted framework has been used to

uphold or distinguish disclosure regimes. The opt-out

characteristic has gained traction despite having no

bearing on the requisite means-end fit and the

misdirection of shifting the burden of unconstitutional

laws onto the donor. That framing error works a

particular mischief in cases like this one because a

donor cannot opt-out of an investigatory subpoena

issued to the recipient after the contribution has been

made; and any prospective opt-out made in fear that

a disfavored charity may be investigated locks in the

unconstitutional chill without the government having

to do anything.

More recent cases show how the application of

narrow tailoring has diverged from AFPF.

In Dinner Table Action v. Schneider, the issue was

a Maine law that in relevant part required any person,

party committee, or PAC making any “independent

expenditure” in excess of $250 during any one

candidate’s election, to disclose the total contributions

from each contributor regardless of the amount of the

contribution. No. 24-430, 2025 WL 1939946, at *5 (D.

Me. July 15, 2025) (cleaned up). Dinner Table Action

claimed that its smaller dollar contributors would not

continue to contribute if their identities were subject

to disclosure. Id. The court relied on Gaspee to guide

its application of narrow tailoring on two points. First,

it compared the $1,000 expenditure limit from Gaspee

to the $250 expenditure limit in the Maine law. Id. at

5. Second, it compared the Gaspee opt-out provision to

the absence of such an opt-out provision under the

Maine law. Id. at 6. The court thus found that the

Maine disclosure requirement swept so broadly that it

provided “no meaningful opportunity for anonymous

contributions,” thus could not be “described as

narrowly tailored to Maine’s informational interest.”

Id. at 6. While this holding represented a win for

Dinner Table Action and its donors, the narrow

tailoring analysis replicated the Gaspee errors by: 1)

relying on how many people the law applied to rather

than on whether there was a causal relationship

between those people and the government’s alleged

interest, i.e. narrow application, not narrow tailoring;

and 2) relying on whether the contributor could avoid

the unconstitutional burden by opting out of giving.

Similarly, in Wyoming Gun Owners v. Gray,

Wyoming had a campaign finance scheme that

required organizations that spend over $1,000 on an

“electioneering

communication”

disclose

contributions and expenditures related to that

communication. 83 F.4th 1224, 1229 (10th Cir. 2023).

Wyoming Gun Owners, a non-profit gun rights

advocacy group, challenged the constitutionality of

the disclosure scheme. Id.

The court considered “whether Wyoming narrowly

tailored the law” to the state’s anticorruption and

informational interests and held that it did not, in

part because the vague language regarding to whom

the statute applied required over-disclosing

contributions to avoid missing anyone. Id. at 1244,

1247. The court suggested the vagueness issue could

potentially be resolved if the law required earmarking

specific contributions for electioneering. Id. at 1248.

That approach would at least make the Wyoming law

consistent with a Colorado law the court had

previously upheld as satisfying narrow tailoring,

because it required “that organizations need only

disclose those donors who have specifically earmarked

their contributions for electioneering purposes.” Id. at

1248 (citing Independence Inst. v. Williams, 812 F.3d

787, 797 (10th Cir. 2016). That approach, the court

opined, would not be in tension with the Gaspee optout approach. Id. at 1249.

Wyoming Gun Owners is thus another case that

could be considered a win for narrow tailoring. But

like Gaspee, much of the analysis turned on whether

donors could opt-in or opt-out of disclosure rather

than whether the state had justified why donors with

certain characteristics or behaviors could be

compelled to disclose their identities. The opt-out/optin test, to the extent it has gained traction as relevant

to the narrow tailoring analysis, must be justified by

a link to the purpose of the disclosure and not simply

provide a way to expand or contract the number of

people to whom the disclosure applies.

A Colorado case, by contrast, showed the correct

approach to the means-end test when it reviewed a

state law that required an “issue committee” to

disclose the name of the “natural person who is the

registered agent” of the entity paying for the any

communication supporting or opposing a ballot issue.

No on EE - A Bad Deal for Colorado, Issue Comm. v.

Beall, 558 P.3d 671, 673 (Colo. Aug. 4, 2025). No on

EE, which was an issue committee, challenged the

registered-agent provision of the law. Id. at 675–76.

Applying exacting scrutiny, the court explained

that it was required to “consider whether the

government has demonstrated its need for the

disclosure requirement in light of any less intrusive

alternatives,” Id. at 676–77 (cleaned up), and thus

examined whether the links that were claimed to exist

between the disclosure and the state’s informational

interest made sense, holding,

There can be no serious argument that

requiring an issue committee to disclose

the name of its registered agent serves

the governmental interest in informing

the public about an issue committee’s

sources of funding. There is no

requirement in Colorado law that the

registered agent be a donor to an issue

committee, much less a significant

donor. Thus, to the extent the state

would assert such an interest in this

context, there would be a “dramatic

mismatch . . . between the interest [the

state] seeks to promote and the

disclosure

regime

that

[it]

has

implemented in service of that end.”

No on EE, 558 P.3d at 678 (citing AFPF, 594 U.S. at

612). Accordingly, because “the defendants don’t even

try to explain how knowing the name of the registered

agent—as opposed to some other person with a closer

connection to the issue committee—will actually

assist voters” and

“the mere possibility that

disclosure of the registered agent’s name might, in

some cases, provide relevant information to someone

can’t be sufficient if ‘exacting scrutiny’ is to mean

anything.” Id. at 679. The court held the requisite link

between the informational interest of the state and

the name of the registered agent was lacking. It thus

followed “that the registered agent disclosure

requirement . . . violates issue committees’ free speech

rights under the First Amendment.” Id. at 680.

Because “exacting scrutiny is triggered by state

action which may have the effect of curtailing the

freedom to associate, and by the possible deterrent

effect of disclosure,” AFPF, 594 U.S. at 616 (cleaned

up), narrow tailoring must be rigorously applied lest

exacting scrutiny be exacting in name only.

The Burden of Disclosure Must be

Commensurate to the State’s Need for the

Information.

The burden imposed by a state’s disclosure

demand must be commensurate with the burden

placed on the target. AFPF, 594 U.S. at 609 (citing

Shelton, 364 U.S. at 488; Louisiana ex rel. Gremillion

v. NAACP, 366 U.S. 293, 296 (1961)). This Court has

been clear that “[w]hen it comes to ‘a person’s beliefs

and associations,’ [b]road and sweeping state

inquiries into these protected areas . . . discourage

citizens from exercising rights protected by the

Constitution.” AFPF, 594 U.S. at 610 quoting (Baird

v. State Bar of Ariz., 401 U.S. 1, 6 (1971) (plurality

opinion)). “Such scrutiny, we have held, is appropriate

given the ‘deterrent effect on the exercise of First

Amendment rights’ that arises as an ‘inevitable result

of the government’s conduct in requiring disclosure.’”

AFPF 594 U.S. at 607 (citing Buckley v. Valeo, 424

U.S. 1, 65 (1976) (per curium)). “Where the First

Amendment is implicated, the tie goes to the speaker,

not the censor.” Fed. Election Comm’n v. Wisconsin

Right to Life, Inc., 551 U.S. 449, 474 (2007).

This analysis is required even when the claimed

injury is chill of constitutional rights. AFPF, 594 U.S.

at 609 (citing Button, 371 U.S. at 433) (“Narrow

tailoring is crucial where First Amendment activity is

chilled.”). Thus, the lower court here got it wrong by

rejecting chill as an injury sufficient to trigger review:

“but this Court finds that constitutional injury can

only occur here if there is an actual or imminent

threat of forced compliance by the state court, which,

to date, there has not been.” App. 42a, n 22. The

burden here was imposed when the Attorney General

made the demand for donor disclosure without

identifying an interest that disclosure of this group of

donors would aid him in curing. Injury to First

Amendment rights of anonymous donors does not wait

until the state court threatens contempt.

Unlike a subpoena for private records, where the

private party may argue to the court that cost,

privilege, or other burdens that would not attach

unless the subpoena is enforced, should excuse

disclosure, here the chill on association attaches as

soon as the threat becomes known. And it attaches

more broadly than would be the case if only the target

of the subpoena had an interest in confidentiality, in

part because the donors must depend on First Choice

to defend not only its own rights but their rights as

well—while being commanded by the trial court to

negotiate away those rights.

The threat that donor anonymity may be lost

whenever an Attorney General issues an

investigatory demand with no link to any known

injury, once established as a lawful practice, would

reach beyond resolution or negotiation of the

subpoena at issue here. Once the bell blessing this

practice has been rung, it cannot be unrung.

Moreover, it is no answer to say that the broad

collection of donor information has been narrowed by

the Attorney General’s exercise of discretion to target

only those entities with which he apparently

disagrees. If anything, discretionary investigation of

donors with no predicate of harm, aggravates the

constitutional violation by imposing viewpoint

discrimination,9 striking at the very heart of the First

Amendment. AFPF 594 U.S. at 606 (“Protected

association furthers a wide variety of political, social,

economic, educational, religious, and cultural ends,

and is especially important in preserving political and

cultural diversity and in shielding dissident

expression from suppression by the majority.”)

(cleaned up). Had any donor alleged non-speculative

harm, then the Attorney General presumably could

have narrowed his demand to burden only donor

information relating to the injury alleged and may be

on firmer ground than he currently is.

But generalized donor disclosure in search of an

injury imposes a burden that cannot be tied to

“Discrimination against speech because of its message is

presumed to be unconstitutional.” Rosenberger v. Rector &

Visitors of Univ. of Virginia, 515 U.S. 819, 828 (1995). “When the

government targets . . . particular views taken by speakers on a

subject, the violation of the First Amendment is all the more

blatant.” Id. at 829.

necessity and thus violates narrow tailoring. Where,

as here, the government has not even tried to tie the

burden to the need, narrow tailoring cannot be

satisfied. As the Tenth Circuit explained in Wyoming

Gun Owners, identifying the need for the burden is

critical.

Perhaps the Secretary’s fix would seem

more reasonable if these burdens were

inevitable. After all, the lodestar of the

narrow-tailoring inquiry is the necessity

of the burdens. Bonta, 141 S. Ct. at 2385.

If the government seriously undertook to

address the problems it faces with less

intrusive tools readily available to it, we

cannot demand it try a bit harder. . . .

But less intrusive tools—tools that would

not compound WyGO’s initial statutory

burden—were readily available, and the

Secretary offers no reason why Wyoming

could not have used them

Wyoming Gun Owners, 83 F.4th at 1248 (cleaned up).

Instead, the Attorney General and the court below

attempt to shift responsibility for narrowing the

demand onto the victim by making the target

negotiate its scope before asserting the constitutional

injury. Pet. at 18 citing App. 4a (“the parties have

been ordered by the state court to negotiate to narrow

the subpoena’s scope.”). But that will not do either,

both because the form of the demand is not relevant

to the constitutional injury, AFPF 594 U.S. at 605–06

(“Government infringement of this freedom can take

a number of forms.”), and because victims of

unconstitutional demands do not bear the burden of

curing their own injury—that burden must be born by

the government. Wyoming Gun Owners v. Gray, 83

F.4th at 1248 (citing Lorillard Tobacco Co. v. Reilly,

533 U.S. 525, 567 (2001) (“the government must still

justify the burden that exists.).

II.

THIS CASE DEMONSTRATES THE RISK TO FREE

ASSOCIATION BY PROCEDURAL MANEUVERING

TO CIRCUMVENT AFPF V. BONTA.

This

case

demonstrates

the

risk

constitutionally-protected association that is created

from demoting constitutional review until after other

procedures have run their course. Cf. Axon Enter., Inc.

v. Fed. Trade Comm’n, 598 U.S. 175, 180 (2023)

(recognizing

preeminence

federal

court

constitutional review over preferences for agency

efficiency). For example, the district court opined,

relative to the alleged injury from removing donor

information

from

publicly-available

videos, 10

“Plaintiff can alter the video back to its original form.

Therefore, the harm is, by definition, reparable.” App.

52a. Unless altering the video also includes timetravel to recoup the time lost, the injury is locked in.

Moreover, this approach misstates bedrock First

Amendment law, which recognizes the “loss of First

Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373–74 (1976).

Similarly, the Chancery Court’s holding that

“service of the subpoena itself was not

unconstitutional based on the statutory investigatory

10 See App. 51a –52a “Plaintiff’s final contention submits that the

Subpoena’s issuance impacted Plaintiff’s speech where it had to

alter YouTube videos to protect clients from harassment as a

result of its issuance.”

powers granted to plaintiffs by the Legislature,” App.

63a, also misses the point. Whether state law

authorizes a district attorney to issue subpoenas has

no bearing on whether the subpoena imposes

unconstitutional burdens. But these types of

misdirection will harm associational rights by miring

a charity in procedures that should not be imposed

when the request itself is unconstitutional—even if

the procedures are supposedly “mild.” AFPF, 594 U.S.

at 611 (“Nor does our decision in Reed suggest that

narrow tailoring is required only for laws that impose

severe burdens.”).

The burden here is not mild. The New Jersey

Attorney General’s investigative power, which the

New Jersey Supreme Court has characterized as the

“power of inquisition”, allows the Attorney General to

“investigate merely on the suspicion that the law is

being violated, or even just because [he] wants

assurance that it is not.” In re Addonizio, 248 A.2d

531, 539 (N.J. 1968). This is essentially the same

justification employed in AFPF. This Court rejected

that approach. AFPF, 594 U.S. at 597 (“In reality,

California’s interest is less in investigating fraud and

more in ease of administration. But ‘the prime

objective of the First Amendment is not efficiency.’”)

(citing McCullen v. Coakley, 573 U.S. 464, 495 (2014).

Regardless of how the state court proceedings

eventually turn out, proceedings in which

constitutional concerns play second fiddle to state

police powers put donors on notice that if they are

disfavored by the state, then they can expect to be

subject to persistent risk of disclosure. The chill to

association and expression that AFPF v. Bonta was

meant to avoid is inescapable.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,