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

No. 24-781

In the Supreme Court of the United States

_________

F IRST C HOICE W OMEN ’S RESOURCE CENTERS , I NC .,

Petitioner,

v.

MATTHEW P LATKIN , 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 OF AMICUS CURIAE

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

_________

BRIDGET C ONLAN

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

(202) 888-6881

BConlan@pacificlegal.org

ETHAN W. BLEVINS

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

(916) 503-9060

EBlevins@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

TABLE OF CONTENTS

Interest of Amicus Curiae .......................................... 1

Summary of the Argument ......................................... 1

Argument .................................................................... 3

1. Knick Held That State Litigation Is Not a

Prerequisite to a Section 1983 Action and

Put Takings Claims on Equal Foorting with

All Other Claims Grounded in the Bill of

Rights.................................................................... 4

2. Prudential Considerations Such as Comity

and Federalism Do Not Warrant the District

Court’s Deviation from the Mandates of

Section 1983 ......................................................... 8

3. Applying Knick, First Choice Satisfies

Ripeness and Standing as Soon as Their

Speech Is Chilled ................................................ 11

Conclusion ................................................................. 15

ii

TABLE OF AUTHORITIES

Cases:

Ams. for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) ..................................2, 11-14

Baird v. State Bar of Ariz.,

401 U.S. 1 (1971) ............................................... 12

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ....................................2, 12-13

Bates v. City of Little Rock,

361 U.S. 516 (1960) ........................................... 14

Felder v. Casey,

487 U.S. 131 (1988) ............................................. 4

First Eng. Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

482 U.S. 304 (1987) ......................................... 5-6

Google, Inc. v. Hood,

822 F.3d 212 (5th Cir. 2016) ........................... 7-8

Heck v. Humphrey,

512 U.S. 477 (1994) ............................................. 1

Knick v. Township of Scott,

588 U.S. 180 (2019) ........................ 1-9, 11-12, 15

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ............................. 4

McNeese v. Bd. of Educ. for Cmty. Unit Sch.

Dist. 187, Cahokia, Ill.,

373 U.S. 668 (1963) ......................................... 3-4

Mitchum v. Foster,

407 U.S. 225 (1972) ......................................... 3-4

Monroe v. Pape,

365 U.S. 167 (1961) ............................................. 9

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) ..................................3, 13-15

iii

NAACP v. Button,

371 U.S. 415 (1963) ............................................. 6

Patsy v. Bd. of Regents of State of Fla.,

457 U.S. 496 (1982) ............................................. 3

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ........................................... 12

San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621 (1981) ......................................... 5-6

Sec’y of State of Md. v. Joseph H. Munson Co.,

467 U.S. 947 (1984) ......................................11-12

Shelton v. Tucker,

364 U.S. 479 (1960) ............................................. 3

Sprint Commc’n, Inc. v. Jacobs,

571 U.S. 69 (2013) ..........................................9-10

Talley v. California,

362 U.S. 60 (1960) ............................................... 3

Twitter, Inc. v. Paxton,

56 F.4th 1170 (9th Cir. 2022) .......................... 7-8

Williams v. Reed,

145 S. Ct. 465 (2025) ........................................... 4

Williamson County Regional Planning

Commission v. Hamilton Bank of

Johnson City,

473 U.S. 172 (1985) ......................................... 5-7

Statute:

42 U.S.C. § 1983 ............................... 1-5, 7-11, 13, 15

Other Authorities:

Allen, Thomas R., Note, Summary

Proceedings in Direct Contempt Cases,

15 Vand. L. Rev. 241 (1961) .............................. 10

iv

Dana, D. & Merrill, T.,

Property: Takings (2002) ..................................... 5

Reply Brief for Appellants,

Knick v. Township of Scott,

588 U.S. 180 (2019) ............................................. 7

Supreme Court Rule 37.6 ......................................... 1

1

INTEREST OF AMICUS CURIAE 1

Since 1973, Pacific Legal Foundation (PLF), a nonprofit law firm, has defended constitutional values involving limited government, private property rights,

and free enterprise. In securing redress for individuals threatened by burdensome laws, PLF has appeared many times before this Court, including in

Knick v. Township of Scott, 588 U.S. 180 (2019)—a

precedent relevant to this case. Thus, PLF has a special interest in the outcome here, both on its own behalf and on behalf of its clients. Depriving politically

disfavored nonprofit organizations of a federal forum

would be detrimental to PLF and its clients—in addition to contravening the settled construction of Section 1983. Individual donations give PLF the ability

to fulfill its mission to protect countless individuals in

need of representation. Therefore, PLF has a strong

interest in ensuring free association and access to federal courts for First Amendment violations.

SUMMARY OF THE ARGUMENT

The Civil Rights Act of 1871 (hereafter “Section

1983”) was enacted to guarantee “a federal forum for

claims of unconstitutional treatment at the hands of

state officials” without requiring “exhaustion of state

remedies.” Heck v. Humphrey, 512 U.S. 477, 480

(1994); 42 U.S.C. § 1983. The Third Circuit abandoned this bedrock principle when it affirmed the dismissal of First Choice’s Section 1983 claim because

1 Pursuant to Supreme Court Rule 37.6, Amicus Curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from Amicus Curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief.

2

First Choice could “continue to assert its constitutional claims in state court.” Pet. App. 4a.

The lower court’s decision puts First Choice in the

same Catch-22 that this Court rejected for takings

claims in Knick, 588 U.S. at 206. Here, First Choice

“cannot go to federal court without going to state court

first; but if” First Choice “goes to state court and

loses,” its “claim will be barred in federal court.” Id.

at 184-85. This Court has rightly characterized such

procedural gamesmanship as “an unjustifiable burden.” Id. at 185.

Despite acknowledging that federal court review

will “seldom” exist under this framework, Pet. App.

82a n.7, the district court proposed a “narrow” path

through which litigants might bring Section 1983

claims. Pet. App. 54a-55a n.24. The court ruled that

First Choice may satisfy standing and ripeness if it

files suit after a state court enforces the subpoena under threat of contempt, but before actually holding

First Choice in contempt. Ibid. Once again, the lower

court’s holding collides with this Court’s precedents.

It is fundamental that a party may seek relief under

Section 1983 as soon as they are injured. Knick, 588

U.S. at 202. In the First Amendment context, that

means the moment a party’s protected associational

rights are at risk of being chilled. Ams. for Prosperity

Found. v. Bonta, 594 U.S. 595, 618 (2021) (“[T]he protections of the First Amendment are triggered not

only by actual restrictions on an individual’s ability to

join with others to further shared goals. The risk of a

chilling effect on association is enough[.]”). Even “informal . . . threat[s] of invoking legal sanctions” may

constitute a sufficient First Amendment injury. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963).

3

Here, “disclosure requirements”—like state investigatory subpoenas—“can chill association even if

there is no disclosure to the general public.” Shelton

v. Tucker, 364 U.S. 479, 486 (1960); see Talley v. California, 362 U.S. 60, 65 (1960) (“[I]dentification and

fear of reprisal might deter perfectly peaceful discussions of public matters of importance.”). That is because “compelled disclosure of affiliation . . . may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” NAACP

v. Alabama ex rel. Patterson, 357 U.S. 449, 462

(1958).

Absent relief from this Court, state attorney generals would be free to target politically unpopular nonprofit organizations without fearing federal court review. This padlock on federal courthouse doors is at

odds with Congress’s intent in Section 1983 “to throw

open the doors of the United States courts . . . [and]

provide these individuals immediate access to the federal courts.” See Patsy v. Bd. of Regents of State of

Fla., 457 U.S. 496, 504 (1982) (cleaned up). This Court

should clarify that because federal courts must guard

the people’s constitutional rights, litigants may seek

relief in federal court for any federal constitutional

claim the moment they are injured.

ARGUMENT

Section 1983 empowers federal courts to act as the

“guardians of the people’s federal rights,” shielding

them from unconstitutional state actions.

See

Mitchum v. Foster, 407 U.S. 225, 242 (1972). Forcing

litigants to wade through state court before they can

access federal court defeats this goal. See Knick, 588

U.S. at 194 (citing McNeese v. Bd. of Educ. for Cmty.

Unit Sch. Dist. 187, Cahokia, Ill., 373 U.S. 668, 672

4

(1963)).2 A long line of cases from this Court establishes the primacy of federal review of federal constitutional issues. See Martin v. Hunter’s Lessee, 14 U.S.

(1 Wheat.) 304, 344-50 (1816) (defending primacy of

federal review of constitutional issues to avoid state

court bias and to ensure uniformity of decision making); see also Felder v. Casey, 487 U.S. 131, 141 (1988)

(enacting Section 1983 in response to the influence of

state politics on state courts); see also Mitchum 407

U.S. at 242 (detailing the passage of Section 1983 as a

reaction to state courts’ failure to protect federal

rights during the Reconstruction Era). Given the

well-settled interpretation of Section 1983, this Court

should make explicit that the Third Circuit erred in

exempting state investigations from federal court review because federal courts must exercise jurisdiction

in Section 1983 claims.

Knick Held That State Litigation Is Not a

Prerequisite to a Section 1983 Action and

Put Takings Claims on Equal Footing with

All Other Claims Grounded in the Bill of

Rights

The settled rule is that “plaintiffs may bring constitutional claims under §1983 ‘without first bringing

1.

2 Unlike federal courts, which have a duty to vindicate federal

constitutional claims, “[t]he Constitution allows States to hear

federal claims in their courts, but it does ‘not impose a duty on

state courts to do so.’” Williams v. Reed, 145 S. Ct. 465, 473 (2025)

(Thomas, J., dissenting). Although this case is distinct from Williams, because here First Choice sought a federal forum rather

than a state forum, the majority in Williams underscores this

Court’s prioritization of Section 1983 claims in its refusal to allow

concerns about imposing judicial duties on the state court system

to trip up Section 1983 claims with procedural snags.

5

any sort of state lawsuit, even when state court actions addressing the underlying behavior are available.’” Knick, 588 U.S. at 194 (quoting D. Dana & T.

Merrill, Property: Takings 262 (2002)). For example,

in Knick, the plaintiff filed a Section 1983 action after

a town ordinance effected a taking of her property. Id.

at 186-87. The federal district court required her to

seek just compensation in state court before filing in

federal court, applying the special exhaustion rule

unique to takings claims from Williamson County Regional Planning Commission v. Hamilton Bank of

Johnson City, 473 U.S. 172, 194 (1985) (hereafter

“Williamson County”). Ibid. Ultimately, this Court

overruled Williamson County and held that state

court action is not a prerequisite to federal court review under Section 1983. Knick, 588 U.S. at 185.

In Knick, this Court repudiated the Catch-22 of

Williamson County’s “preclusion trap”: the plaintiff

“cannot go to federal court without going to state court

first; but if he goes to state court and loses, his [constitutional] claim will be barred in federal court[,]” under res judicata. Knick, 588 U.S. at 184-85. Worse,

Williamson County’s rule singled out takings claims—

and only takings claims—for second-class treatment

among Section 1983 claims. Id. at 194. In that sense,

Williamson County’s state court litigation requirement was itself an anomaly and—when it was argued—already on shaky ground. Id. at 203. Numerous justices had questioned the wisdom of the rule ultimately adopted in Williamson County, just four

years before it was decided. See First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315, 318 (1987) (quoting and citing

San Diego Gas & Elec. Co. v. City of San Diego, 450

6

U.S. 621, 654 (1981) (Brennan, J., dissenting)) (arguing that the claimant need not seek compensation in

state court before bringing a federal takings claim).

Given the troubling implications of Williamson

County, it is no surprise that this Court chose to reject

the state litigation requirement as an “unjustifiable

burden.” Knick, 588 U.S. at 185.

The district court here, however, took Williamson

County’s Catch-22 to new heights by exporting its discredited reasoning into the First Amendment context—an area that has historically recognized broad

protections “[b]ecause First Amendment freedoms

need breathing space to survive[.]” NAACP v. Button,

371 U.S. 415, 433 (1963). Even before Williamson

County was overturned, no one thought that this preclusion trap applied outside of the Takings Clause,

much less in the forgiving context of the First Amendment. See Knick, 588 U.S. at 185 (“The . . . preclusion

trap should tip us off that the state-litigation requirement rests on a mistaken view of the Fifth Amendment.”). And when overturning Williamson County,

this Court clarified that the “general rule” providing

for federal court review applies not just for takings

claims but “for any other claim grounded in the Bill of

Rights.” Id. at 194.

Under the district court’s rule, First Choice is subject to the same Catch-22 as the plaintiff in Knick.

Namely, First Choice is prevented from ever bringing

its claims in federal court because an adverse decision

in state court will bar First Choice’s First Amendment

claim. Indeed, the district court acknowledged as

much in its opinion: “functionally . . . [First Choice’s

claims] may seldom if ever be ripe for adjudication in

federal court” because of “res judicata.” Pet. App. 82a

7

n.7. Such a “preclusion trap” is unworkable and inconsistent with this Court’s holding in Knick. Knick,

588 U.S. at 205.

Ironically, when Knick was argued, PLF cited the

First Amendment to illustrate Williamson County’s

second-class treatment of the Takings Clause compared to other Section 1983 claims. Reply Brief for

Appellants, at 18 (contrasting the Takings Clause

with the First Amendment: “federal courts often deal

with local land use issues in First Amendment, Equal

Protection and other constitutional cases. . . . There

is no reason they cannot do so in takings cases.”) (internal quotation marks omitted). But rather than following this Court’s mandate in Knick to treat takings

claims the same as any other claim grounded in the

Bill of Rights, the Third Circuit flipped the problem,

now giving the First Amendment second-class treatment.

It gets worse. Despite acknowledging the risk of

slamming the courtroom doors shut, the district court

incrementally raised the threshold for ripeness as the

case progressed. The first time the case came before

the district court, the court held that a subpoena must

be enforced in state court before it may be challenged

in federal court, following Google, Inc. v. Hood, 822

F.3d 212, 225 (5th Cir. 2016). Recognizing the existence of a circuit split, the district court chose to follow

Google over the Ninth Circuit’s rule in Twitter, Inc. v.

Paxton, 56 F.4th 1170, 1178 n.3 (9th Cir. 2022), which

allowed for litigants to challenge state subpoenas so

long as the plaintiff alleged “objectively reasonable

chilling of its speech.” After the state court enforced

the subpoena, the district court broke new ground

and, for the first time, announced that Section 1983

8

actions would be ripe “only” after a state court required First Choice to respond under the “threat of

contempt.” Pet. App. 42a.

Neither Google nor Twitter ever suggested that a

challenge to an enforceable subpoena was unripe.

Google, 822 F.3d at 224 (holding only that a “non-selfexecuting” subpoena was not ripe for adjudication)

(emphasis added). Indeed, both parties had already

stipulated that the case was ripe after the state court

enforced the subpoena. The district court’s newfangled reasoning raised the bar for ripeness—with troubling consequences for underfunded nonprofit organizations facing a contempt order. Given the similarity

between the exhaustion requirement in this case and

that in Knick, the “error [should] have been clear.”

588 U.S. at 194.

2. Prudential Considerations Such as Comity and Federalism Do Not Warrant the

District Court’s Deviation from the Mandates of Section 1983

Recognizing the tension between its opinion and

Knick, the district court proposed a “narrow” and

“small” window through which First Choice might

bring its Section 1983 claim, relying on “principles of

federalism and comity” to justify its decision. Pet.

App. 54a–55a n.24. Specifically, the district court reasoned that “[t]he function of the ripeness doctrine . . .

counsels abstention until such time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.” Pet. App. 83a

(internal citations omitted). As such, First Choice

“may” bring its claim between the time a state court

threatens First Choice with contempt and the time

when contempt is actually imposed. Ibid. Thus, First

9

Choice is not “entirely prohibited” from bringing its

claims in federal court. Ibid.

In holding that First Choice is not “entirely prohibited” from bringing its claims in federal court, the district court misconstrued this Court’s decision in

Knick. Entire prohibition from federal court review

has never been the standard by which courts decide

Section 1983 claims. In fact, this Court’s precedents

have consistently said the opposite: The “federal remedy is supplementary to the state remedy, and the latter need not be first sought . . . before the federal one

is invoked.” Monroe v. Pape, 365 U.S. 167, 183 (1961).

The district court failed to apply the correct, applicable law. First Choice need not exhaust all metaphysical possibilities, however remote, to avail itself of federal court review. Indeed, it need not seek state court

review at all under Monroe. Therefore, the entire prohibition standard has no foundation in this Court’s jurisprudence.

Moreover, this Court has already rejected these

“federalism and comity” arguments in Knick. Knick,

588 U.S. at 204 n.8 (“[S]ince the Civil Rights Act of

1871, part of ‘judicial federalism’ has been the availability of a federal cause of action when a local government violates the Constitution.”). Instead, what

seems to animate the district court’s decision is not in

fact ripeness—where prudential concerns about federalism and comity are irrelevant—but rather abstention cloaked in ripeness. But this Court has emphasized that abstention is a narrow doctrine as federal

courts have a “virtually unflagging” obligation to exercise their jurisdiction. Sprint Commc’n, Inc. v. Jacobs, 571 U.S. 69, 77-78 (2013) (“Federal courts . . .

have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not

10

given.”) (cleaned up). Therefore, the holding below,

which amounts to de facto abstention, shirks a prime

duty of the federal courts.

Even assuming the district court’s premise, its

holding raises the very federalism and comity concerns that it seeks to avoid. The district court stressed

that the Section 1983 claim must be brought in federal

court before contempt is found and before the state

court expressly considers the constitutional claims,

due to res judicata. Pet. App. 54a-55a n.24. What

happens if a claim is brought in federal court and the

federal judge fails to act before First Choice’s compliance deadline expires? The district court neglected to

say. Nor did the district court ever explain how a

party could face a “threat of contempt,” without first

defying—or at least ignoring—the state court’s enforcement orders. Courts ordinarily do not threaten

litigants with “imminent contempt” unless they

defy—or at least ignore—a court order. Thomas R. Allen, Note, Summary Proceedings in Direct Contempt

Cases, 15 Vand. L. Rev. 241, 242 (1961) (surveying the

state courts’ usage of their contempt power and defining criminal contempt as “the result of some active

disrespect of the court” and civil contempt as “the passive failure to obey the court”) (emphasis omitted).

Yet, as a practical matter, the district court’s proposed solution will create a perverse incentive for litigants to do just that. Because federal court review

will “seldom” exist under the district court’s rule, litigants will need to sail even closer to defiance of state

court orders to trigger a contempt threat. Pet. App.

82a n7. In this respect, the district court’s proposed

“solution” is not a viable solution at all. Even if some

litigants choose not to pursue this strategy, incentiv-

11

izing defiance of state court orders raises the very federalism concerns that the district court seeks to avoid.

It creates “needless friction with state policies,” harms

“cooperative judicial federalism,” and hinders “harmonious relations between state and federal authority.” Knick, 588 U.S. at 221 (Kagan, J., dissenting).

The district court’s rule therefore contravenes even

the dissent’s position in Knick, arguing for broad abstention of state-law issues. In short, the district

court’s “narrow” and “small” path is untenable and

raises—rather than obviates—serious concerns about

federalism and principles of comity.

Applying Knick, First Choice Satisfies

Ripeness and Standing as Soon as Their

Speech Is Chilled

A party may seek relief under Section 1983 as soon

as they are injured. Knick, 588 U.S. at 202. Even the

dissent in Knick agreed with that proposition. See id.

at 212. The sole issue was when the injury arose under the Takings Clause. Id. at 181. This Court found

that the constitutional injury occurred “at the time of

the taking, regardless of post-taking remedies that

may . . . [have been] available to the property owner.”

Id. at 190. Thus, the petitioner in Knick could bring

her Section 1983 claim as soon as her property was

taken.

This Court should apply the same reasoning to the

First Amendment claim at issue here and reject the

district court’s state litigation requirements. Neither

Knick nor the First Amendment exempts state subpoenas from the ordinary course of federal judicial review under Section 1983. Ams. for Prosperity Found.,

594 U.S. at 598 (quoting Sec’y of State of Md. v. Joseph

H. Munson Co., 467 U.S. 947, 968 (1984)) (holding that

3.

12

“every demand that might deter association ‘creates

an unnecessary risk of chilling’ in violation of the First

Amendment.” (emphasis added)). Furthermore, as

mentioned above, this Court has already rejected

“principles of federalism and comity” arguments in

Knick. See Knick, 588 U.S. at 202 n.8. Thus, Knick’s

general rule applies to state subpoenas, just as to

every other state action.

There are especially compelling reasons to apply

Knick in the First Amendment context. The First

Amendment demands robust protections to “preserve[] political and cultural diversity” and to “shield[]

dissident expression from suppression by the majority.” Ams. for Prosperity Found., 594 U.S. at 606

(quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 622

(1984)). Were the law otherwise, states would be free

to engage in “[b]road and sweeping” inquiries to “discourage citizens from exercising rights protected by

the Constitution.” Baird v. State Bar of Ariz., 401 U.S.

1, 6 (1971) (plurality opinion); see also Bantam Books,

372 U.S. at 66 (“[F]reedoms of expression in general

. . . are vulnerable to gravely damaging yet barely visible encroachments.”). Thus, just as “the taking itself

violate[d] the Fifth Amendment,” Knick, 588 U.S. at

181, the chilling of association violates the First

Amendment. Ams. for Prosperity Found., 594 U.S. at

618 (“When it comes to the freedom of association, the

protections of the First Amendment are triggered not

only by actual restrictions on an individual’s ability to

join with others to further shared goals. The risk of a

chilling effect on association is enough[.]”).

13

To illustrate the breadth of this Court’s First

Amendment protections, consider Bantam Books.

There, Rhode Island set up a commission to notify distributors when materials from publishers had been

deemed inappropriate for minors. 372 U.S. at 61. The

commission had no “power to apply formal legal sanctions” and the distributor could have ignored the commission’s notice without violating the law. Id. at 66.

Yet, this Court found that even “informal . . . threat[s]

of invoking legal sanctions” created a ripe First

Amendment claim. See id. at 67. It made no difference that the state had not prosecuted anyone for the

possession or sale of these materials. See ibid. Even

if these materials had not been seized or banned, the

mere chilling of one’s speech could sustain a First

Amendment challenge. Ibid. A herculean effort

therefore is not necessary to satisfy standing and ripeness requirements in the First Amendment context.

Here, First Choice should be permitted to bring its

Section 1983 claim as soon as its associational rights

are chilled. Because the chilling of association is the

constitutional injury, the mere “possible deterrent effect” of mandating disclosures creates a viable First

Amendment claim. Ams. for Prosperity Found., 594

U.S. at 616 (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. at 460-61) (prohibiting compelled disclosures under the First Amendment because

“NAACP members faced a risk of reprisals if their affiliation with NAACP became known”) (emphasis

added). As such, First Choice need not wait until its

First Amendment rights are frozen to avail itself of

federal court review.

In fact, this Court has previously applied these

broad First Amendment principles to circumstances

much like the one here. In Americans for Prosperity

14

Foundation, 594 U.S. at 601, the California Attorney

General demanded that the petitioners disclose the

identities of their donors, or risk suspension of their

nonprofit registration. This Court held that the First

Amendment prohibited such compelled disclosures,

emphasizing “the vital relationship between freedom

to associate and privacy in one’s associations.” Id. at

606; see NAACP v. Alabama ex rel. Patterson, 357 U.S.

at 462 (“[P]rivacy in group association may in many

circumstances be indispensable to preservation of

freedom of association, particularly where a group espouses dissident beliefs.”); see also Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) (warning that associational rights must be “protected not only against

heavy-handed frontal attack, but also from being stifled by more subtle governmental interference”). Specifically, because the petitioners—and their donors—

had faced harassment, bomb threats, stalking, and

physical violence in the past, this Court found the petitioners’ fear of future retaliation “reasonably justified.” Ams. for Prosperity Found., 594 U.S. at 605.

Here, the district court’s holding that standing and

ripeness exist only when “compliance [to a state subpoena] is required under threat of contempt” contravenes this Court’s precedents. Pet. App. 42a. Like the

petitioners in Americans for Prosperity Foundation,

First Choice pleaded sufficient facts to demonstrate a

concrete First Amendment injury for purposes of

standing and ripeness. First Choice documented a

pattern of violence and intimidation against pregnancy centers, the suppressive effects of state subpoenas on donations, and the self-censorship that First

Choice has had to impose to protect their staff from

harm. Pet. App. 182a-83a. As such, the state subpoena in this case creates the same risk of chilling as

15

the mandatory donor disclosure requirements did in

Americans for Prosperity Foundation. Accordingly,

not only is there a “reasonably justified” fear of retaliation, but First Choice has shown actual chilling of

their associational rights. Thus, First Choice satisfies

standing and ripeness.

If the district court’s ruling is allowed to stand, political actors—from both parties—would be free to target politically disfavored organizations, unchecked by

federal court review. Even where actions are taken

with the express intent of chilling these organizations’

First Amendment rights, their Section 1983 claims

will never have their day in federal court. Our Constitution promises the right to associate to advance

“[e]ffective advocacy.” NAACP v. Alabama ex rel. Patterson, 357 U.S. at 460 (“Effective advocacy of both

public and private points of view, particularly controversial ones, is undeniably enhanced by group association[.]”). Thus, access to federal courts must be enshrined to protect the constitutional rights of organizations that may lack the resources to risk contempt

in state court. The vital role of the First Amendment

in safeguarding “[e]ffective advocacy of both public

and private points of view,” warrants federal judicial

review. Ibid.

CONCLUSION

Just as a takings plaintiff has an actionable claim

in federal court as soon as their property is taken, a

First Amendment plaintiff has an actionable claim as

soon as their speech or associational rights are chilled.

The Takings Clause is not a “poor relation” in the Bill

of Rights, and neither is the First Amendment. Knick,

16

588 U.S. at 189. For the foregoing reasons, the judgment of the Third Circuit should be reversed.

Respectfully submitted,

BRIDGET C ONLAN

ETHAN W. BLEVINS

Pacific Legal Foundation

Counsel of Record

3100 Clarendon Blvd.

Pacific Legal Foundation

Suite 1000

555 Capitol Mall

Arlington, VA 22201

Suite 1290

(202) 888-6881

Sacramento, CA 95814

BConlan@pacificlegal.org (916) 503-9060

EBlevins@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

AUGUST 2025