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

Supreme Court briefAug 28, 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 Writ of Certiorari to the

U.S. Court of Appeals for the Third Circuit

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

Jonathan D. Urick

Audrey Dos Santos

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

August 28, 2025

Caleb P. Burns

Jeremy J. Broggi*

Joel S. Nolette

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

(202) 719-7000

JBroggi@wiley.law

*Counsel of Record

Counsel for Amicus Curiae

-iTABLE OF CONTENTS

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

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

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

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

The First Amendment Privilege Protects

Associations’ Confidential Materials From

Compelled Disclosure. ....................................... 3

II.

States Increasingly Are Chilling Associational

Speech Through Compelled Disclosure Of

Associations’ Confidential Materials. ............... 7

III.

Timely Access To Federal Courts Is Critical For

Associations Seeking To Vindicate The First

Amendment Privilege. ..................................... 12

CONCLUSION .......................................................... 17

- ii TABLE OF AUTHORITIES

Page(s)

Cases

AFL-CIO v. FEC,

333 F.3d 168 (D.C. Cir. 2003) ............................. 5

American Chemistry Council v. Bonta,

No. 1:24-cv-1533-APM (D.D.C. May 24,

2024) .................................................................... 9

Americans for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) .......... 3, 4, 5, 7, 11, 12, 13, 15

Black Panther Party v. Smith,

661 F.2d 1243 (D.C. Cir. 1981) ....................... 5, 6

Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485 (1984) ........................................... 10

Buckley v. Valeo,

424 U.S. 1 (1976) ........................................... 4, 12

DeGregory v. Att’y Gen. of N.H.,

383 U.S. 825 (1966) ......................................... 2, 5

Exxon Mobil Corp. v. Healey,

28 F.4th 383 (2d Cir. 2022)........................... 8, 14

Exxon Mobil Corp. v. Walker,

No. 4:16-cv-00364-K (N.D. Tex. May 18,

2016) .................................................................... 8

First Nat. Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ............................................. 6

- iii FTC v. American Tobacco Co.,

264 U.S. 298 (1924) ........................................... 12

Gibson v. Fla. Legis. Investigation Comm.,

372 U.S. 539 (1963) ............................... 2, 5, 6, 12

Google, Inc. v. Hood,

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

Heck v. Humphrey,

512 U.S. 477 (1994) ........................................... 13

Knick v. Twp. of Scott,

588 U.S. 180 (2019) ........................................... 14

Mahmoud v. Taylor,

145 S. Ct. 2332 (2025) ....................................... 15

McIntyre v. Ohio Election Comm’n,

514 U.S. 334 (1995) ........................................... 11

Media Matters for America v. Paxton,

138 F.4th 563 (D.C. Cir. 2025) ..................... 6, 12

Medina v. Planned Parenthood S. Atl.,

145 S. Ct. 2219 (2025) ....................................... 13

Monroe v. Pape,

365 U.S. 167 (1961) ........................................... 14

In re Motor Fuel Temperature Sales Pracs.

Litig.,

641 F.3d 470 (10th Cir. 2011)............................. 5

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) ..........................4, 5, 7, 12, 15

- iv NRA v. Vullo,

602 U.S. 175 (2024) ......................................... 6, 8

O’Connor-Ratcliff v. Garnier,

601 U.S. 205 (2024) ........................................... 13

Patsy v. Bd. of Regents of Fla.,

457 U.S. 496 (1982) ........................................... 13

Perry v. Schwarzenegger,

591 F.3d 1126 (9th Cir. 2009)............................. 5

Plastics Industry Ass’n v. Bonta,

No. 1:24-cv-1542-APM, 2025 WL

1025142 (D.D.C. Apr. 7, 2025)............................ 9

Ripon Soc’y, Inc. v. Nat’l Republican Party,

525 F.2d 567 (D.C. Cir. 1975) ............................. 5

Smith & Wesson Brands, Inc. v. Att’y Gen.

of N.J.,

105 F.4th 67 (3d Cir. 2024)........................... 9, 14

Stanford v. Texas,

379 U.S. 476 (1965) ............................................. 6

Sweezy v. New Hampshire,

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

Talley v. California,

362 U.S. 60 (1960) ............................................. 11

Testa v. Katt,

330 U.S. 386 (1947) ........................................... 15

Twitter, Inc. v. Paxton,

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

-vUnited States v. Alvarez,

567 U.S. 709 (2012) ........................................... 10

Washington Post v. McManus,

944 F.3d 506 (4th Cir. 2019)............................... 6

Watchtower Bible & Tract Soc’y of N.Y., Inc.

v. Village of Stratton,

536 U.S. 150 (2002) ........................................... 11

Williams v. Reed,

145 S. Ct. 465 (2025)......................................... 14

Constitutional Provisions

U.S. Const. amend. I ................................................ 4

U.S. Const. art. VI, cl. 2 ......................................... 15

Statutes

42 U.S.C. § 1983 ................................................. 3, 13

Other Authorities

The Federalist No. 81 (Alexander

Hamilton) (Liberty Fund ed. 2001) .................. 16

Press Release, Cal. Dep’t of Just., Off. of

Att’y Gen., Attorney General Bonta

Petitions Court to Compel Plastics

Industry Association and American

Chemistry Council to Fully Comply with

Outstanding Investigative Subpoenas

(May 28, 2024) .................................................... 9

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members

and indirectly represents the interests of more than

three million companies and professional organizations of every size, in every industry sector, and from

every region of the country. An important function of

the Chamber is to represent the interests of its members in matters before Congress, the Executive

Branch, and the courts. To that end, the Chamber

regularly files amicus curiae briefs in cases, like this

one, that raise issues of concern to the Nation’s business community.

The Chamber has a strong interest in this case.

Increasingly, state officials are weaponizing subpoenas, civil investigative demands, and other forms of

compulsory process to obtain sensitive internal information from trade and other expressive associations

whose views they oppose. When state officials fail to

meet the very high First Amendment standard this

Court has endorsed for all compelled disclosure requirements, lower federal courts must hold these officials to account lest speech and associational freedoms be impermissibly chilled.

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

and no person or entity other than the Chamber, its members,

or its counsel made a monetary contribution intended to fund the

preparation or submission of this brief.

SUMMARY OF ARGUMENT

The State of New Jersey is the most recent government to seek the confidential internal materials of a

group that it opposes. Soon after taking office, the

New Jersey Attorney General began publicly denouncing the services Petitioner provides. More than

mere rhetorical opposition, the Attorney General then

issued an administrative subpoena demanding information about nearly 5,000 contributions Petitioner

had received, as well as sensitive internal communications between Petitioner and its supporters.

New Jersey is not alone and neither is Petitioner.

The number of politically motivated investigations is

exploding. There are many recent examples of governments ordering disfavored groups to divulge their

confidential internal materials, without regard to the

severe and obvious chilling effects on speech and association that these demands create. The targets are

politically varied, often including the business community and trade associations.

The First Amendment guards against “use of the

power to investigate enforced by the contempt power

to probe at will and without relation to existing need.”

DeGregory v. Att’y Gen. of N.H., 383 U.S. 825, 829

(1966). “[C]ompulsory process” intrudes “into the

very heart of the constitutional privilege to be secure

in associations.” Gibson v. Fla. Legis. Investigation

Comm., 372 U.S. 539, 558 (1963). Under this Court’s

precedents, therefore, state investigative demands

seeking expressive associations’ confidential internal

materials must satisfy “strict scrutiny” or, at a mini-

mum, “exacting scrutiny.” See Americans for Prosperity Found. v. Bonta, 594 U.S. 595, 619 (2021)

(Thomas, J., concurring in part and concurring in the

judgment) (“strict scrutiny [applies] to laws that compel disclosure of protected First Amendment association”); id. at 606–08 (plurality opinion) (“exacting

scrutiny” applies to “compelled disclosure” requirements); id. at 623 (Alito, J., concurring in part and

concurring in the judgment) (“I see no need to decide

which standard should be applied here.”).

As politically motivated investigations multiply,

rigorous adherence to high First Amendment standards is all the more important. Ensuring such adherence requires timely access to a neutral and independent decisionmaker with Article III protection from political pressure—exactly the remedy that Congress

provided in 42 U.S.C. § 1983 and which this Court

again endorsed in Americans for Prosperity Foundation v. Bonta. Because the Third Circuit’s denial of

Petitioner’s right to timely access a federal forum contravenes this Court’s precedents and the clearly expressed will of Congress, this Court should reverse.

Any other result would impermissibly chill fundamental First Amendment freedoms.

ARGUMENT

The First Amendment Privilege Protects Associations’ Confidential Materials From Compelled Disclosure

The First Amendment prohibits the Government

from “abridging the freedom of speech, or of the press;

or the right of the people peaceably to assemble, and

to petition the Government for a redress of grievances.” U.S. Const. amend. I. Because effective exercise of these rights “is undeniably enhanced by group

association,” NAACP v. Alabama ex rel. Patterson,

357 U.S. 449, 460 (1958), the Court has “long understood as implicit in the right to engage in activities

protected by the First Amendment a corresponding

right to associate with others,” Americans for Prosperity Found., 594 U.S. at 606 (quoting Roberts v. U.S.

Jaycees, 468 U.S. 609, 622 (1984)).

The right to associate entails the right to do so privately. The Court has “repeatedly found that compelled disclosure, in itself, can seriously infringe on

privacy of association and belief guaranteed by the

First Amendment.” Buckley v. Valeo, 424 U.S. 1, 64

(1976) (per curiam). For example, in NAACP v. Alabama, the Court held that the First Amendment prohibited Alabama’s Attorney General from compelling

the NAACP to provide “the names and addresses of

all its Alabama members and agents.” 357 U.S. at

451. And in Americans for Prosperity Foundation, the

Court held that California could not require charities

to disclose “the identities of their major donors” to its

Attorney General. 594 U.S. at 600–01. In both circumstances, the Court concluded that the government’s demands for confidential group information violated the First Amendment based on “the vital relationship between freedom to associate and privacy in

one’s associations.” Id. at 606–07 (quoting NAACP v.

Alabama, 357 U.S. at 462).

These cases and others stand for a straightforward

principle: When the Government requires “disclosure

of an association’s confidential internal materials, it

intrudes on the ‘privacy of association and belief guaranteed by the First Amendment,’ as well as seriously

interferes with internal group operations and effectiveness.” AFL-CIO v. FEC, 333 F.3d 168, 177–78

(D.C. Cir. 2003) (quoting Buckley, 424 U.S. at 64).

Courts have found that the First Amendment privilege bars government efforts to obtain, among other

things, associations’ “internal planning materials,” id.

at 177, their “strategic pre-lobbying communications,” In re Motor Fuel Temperature Sales Pracs.

Litig., 641 F.3d 470, 481 (10th Cir. 2011), their “internal campaign communications” and related “internal

campaign information,” Perry v. Schwarzenegger, 591

F.3d 1126, 1141–43 (9th Cir. 2009), information about

their structure and organization, Ripon Soc’y, Inc. v.

Nat’l Republican Party, 525 F.2d 567, 585 (D.C. Cir.

1975) (en banc) (plurality opinion), information about

the “identities of [their] leaders,” Black Panther Party

v. Smith, 661 F.2d 1243, 1264 (D.C. Cir. 1981), vacated as moot, 458 U.S. 1118 (1982), and information

that could expose the identities of their donors or

members, see Americans for Prosperity Found., 594

U.S. at 600–01; NAACP v. Alabama, 357 U.S. at 451.

These cases recognize the First Amendment “prevents use of the power to investigate enforced by the

contempt power to probe at will and without relation

to existing need.” DeGregory, 383 U.S. at 829; accord

Gibson, 372 U.S. at 557–58 (“we hold simply that

groups which themselves are neither engaged in subversive or other illegal or improper activities nor

demonstrated to have any substantial connections

with such activities are to be protected in their rights

of free and private association”). Unwarranted gov-

ernmental intrusions into a group’s confidential internal materials pierce “the very heart of the constitutional privilege to be secure in associations.” Gibson,

372 U.S. at 558; see also Washington Post v.

McManus, 944 F.3d 506, 519 (4th Cir. 2019) (per Wilkinson, J.) (“Without clear limits, the specter of a

broad inspection authority, coupled with an expanded

disclosure obligation, can chill speech and is a form of

state power the Supreme Court would not countenance.”).

The need for the security the First Amendment

guarantees is crucially important where, as in the

case below, the association and the Government are

on opposite sides of a policy issue. “Freedom of expression has particular significance with respect to

government because it is here that the state has a special incentive to repress opposition and often wields a

more effective power of suppression.” First Nat. Bank

of Boston v. Bellotti, 435 U.S. 765, 777 n.11 (1978)

(cleaned up); accord Black Panther Party, 661 F.2d at

1265 (“privacy is important where the government itself is being criticized, for in this circumstance it has

a special incentive to suppress opposition”). A state’s

investigatory processes in general, and “a state attorney general’s subpoena power” in particular, “can be

abused to target viewpoints, chill speech, and silence

and intimidate organizations.” Media Matters for

America v. Paxton, 138 F.4th 563, 580 (D.C. Cir.

2025); see NRA v. Vullo, 602 U.S. 175, 180–81 (2024)

(state official “allegedly pressured regulated entities

to help her stifle the NRA’s pro-gun advocacy by

threatening enforcement actions”); Stanford v. Texas,

379 U.S. 476, 482 (1965) (noting British Crown’s “systematic[ ]” abuse of “general warrants” granting royal

officers “roving commissions to search where they

pleased in order to suppress and destroy the literature of dissent” in Tudor England).

At all times, but all the more critically when the

Government may be adverse or hostile to an association’s expressive activities or its point of view, the

First Amendment privilege provides a vital protection

against investigative overreach. “First Amendment

freedoms need breathing space to survive.” Americans for Prosperity Found., 594 U.S. at 609 (quoting

NAACP v. Button, 371 U.S. 415, 433 (1963)).

II.

States Increasingly Are Chilling Associational

Speech Through Compelled Disclosure Of Associations’ Confidential Materials

The burden and chill on First Amendment rights

in this case is severe. This Court has repeatedly given

substantial weight to an association’s interest against

compelled disclosure of its members’ identities. See,

e.g., Americans for Prosperity Found., 594 U.S. at 606;

NAACP v. Alabama, 357 U.S. at 462. New Jersey’s

demands implicate that interest and then some. Its

subpoena seeks not only Petitioner’s “donor records

and identities,” Pet. App. 3a, but also its private communications about strategic planning for public advocacy where Petitioner dissents from New Jersey’s

views, Pet. App. 100a–110a.

New Jersey’s actions illustrate a disturbing trend.

Increasingly, state officials are weaponizing subpoenas, civil investigative demands, and other forms of

compulsory process to obtain confidential and sensitive information from associations they oppose. There

is “no doubt” that these “investigations” “impinge

upon such highly sensitive areas as freedom of speech

or press, freedom of political association, and freedom

of communication of ideas.” See Sweezy v. New Hampshire, 354 U.S. 234, 245 (1957).

The business community is a frequent target of

such abusive investigatory tactics. In Massachusetts

and in New York, state officials insist that oil and gas

companies turn over internal communications about

their views on climate change. See Exxon Mobil Corp.

v. Healey, 28 F.4th 383 (2d Cir. 2022). The same is

true in the U.S. Virgin Islands, where the government

demanded four decades of internal company documents and private communications with third parties

specifically to chill and deter oil and gas companies

“from expressing an opinion on climate change that

runs counter to the view held by … some state officials.” Petition for Declaratory Relief ¶ 66, Exxon Mobil Corp. v. Walker, No. 4:16-cv-00364-K (N.D. Tex.

May 18, 2016), ECF No. 1-5.

In some parts of the country, officials train their

sights on “big tech.” See Twitter, Inc. v. Paxton, 56

F.4th 1170, 1172 (9th Cir. 2022) (“the [Texas] Attorney General served Twitter with a Civil Investigative

Demand asking it to produce various documents relating to its content moderation decisions” (cleaned

up)); Google, Inc. v. Hood, 822 F.3d 212, 216 (5th Cir.

2016) (“Hood’s conflict with Google culminated in his

issuance of a broad administrative subpoena”). Other

States, meanwhile, have different lists of disfavored

industries. See, e.g., Vullo, 602 U.S. at 181 (firearms

association); Smith & Wesson Brands, Inc. v. Att’y

Gen. of N.J., 105 F.4th 67 (3d Cir. 2024) (firearms

manufacturer).

Trade associations are a favorite target. In California, for example, the Attorney General demanded

that a plastics industry trade association turn over internal communications with its members related to

their advocacy in proceedings before a federal administrative agency. See American Chemistry Council v.

Bonta, No. 1:24-cv-1533-APM (D.D.C. filed May 24,

2024) (ongoing action to enjoin subpoena enforcement); see also Plastics Industry Ass’n v. Bonta, No.

1:24-cv-1542-APM, 2025 WL 1025142 (D.D.C. Apr. 7,

2025) (action to enjoin enforcement of subpoena seeking historical member communications on similar topics).

California’s investigation highlights the intentional nature of efforts by some States to chill speech

and association, and to silence and intimidate opposition. When the Federal Trade Commission solicited

comment on a proposed revision to guidance on the

definition of “recyclable” in marketing claims, California and the trade association went head-to-head on

the merits. But rather than rest on the persuasiveness of its own speech to persuade the agency, California launched an investigation into the association,

accusing it of “perpetuating a myth.” Press Release,

Cal. Dep’t of Just., Off. of Att’y Gen., Attorney General

Bonta Petitions Court to Compel Plastics Industry Association and American Chemistry Council to Fully

Comply with Outstanding Investigative Subpoenas

(May 28, 2024), perma.cc/B8UL-B76V. But “[u]nder

our Constitution there is no such thing as a false

idea,” Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485, 504 (1984) (cleaned up); we do not “need

Oceania’s Ministry of Truth,” United States v. Alvarez, 567 U.S. 709, 723 (2012) (plurality opinion). In

reality, California’s alleged “myth” was simply a disagreement about a public-policy issue: the trade association believed that FTC guidance should reflect consumer understandings about the evidence on the effectiveness of plastics recycling, while California did

not. California’s subpoena punished the trade association for sharing its views with a federal agency, demanding its internal communications that would reveal not only individual members’ identities but also

their views on live public-policy issues that California

considers undebatable.

With decades of experience representing hundreds

of thousands of members who wish to participate in

the political marketplace while remaining secure in

their constitutionally protected associational privacy,

the Chamber can attest to the burden and chill that

inevitably results when state officials seek to expose

an association’s member identities or strategic planning materials. Trade associations exist to confidentially collect and represent the views of anonymous

members. Trade associations generally must canvass

members to discern their individual views and resolve

differences, and must do all that before taking public

positions. Allowing state governments to freely compel disclosure of anonymous speech by dissenting

trade associations would definitely chill the speech of

trade associations and their members, just as it would

for other types of expressive associations that may

similarly provide their members with anonymity to

protect associational privacy.

Such a result would be contrary to our history.

Our Nation has had a “respected tradition of anonymity in the advocacy of political causes” since the Federalist Papers and before. McIntyre v. Ohio Election

Comm’n, 514 U.S. 334, 343 & n.6 (1995). In this country, anonymous speech is “not a pernicious, fraudulent practice, but an honorable tradition of advocacy

and of dissent.” Id. at 357. Anonymity is, indeed, “a

shield from the tyranny of the majority.” Ibid. It “exemplifies” the very “purpose behind the Bill of Rights,

and of the First Amendment in particular: to protect

unpopular individuals from retaliation—and their

ideas from suppression—at the hand of an intolerant

society.” Ibid. When it comes to anonymous speech,

the government interest in deterring “fraudulent conduct” must yield to the “greater weight” of the “value

of [the] speech.” Ibid. Losing anonymity has the “inevitable result” of “deter[ring] … the exercise of First

Amendment rights.”

Americans for Prosperity

Found., 594 U.S. at 607.

Anonymity allows a group’s members to engage in

the political marketplace without fear of being punished by their government for advancing unpopular

ideas. See Talley v. California, 362 U.S. 60, 65 (1960)

(“anonymity has sometimes been assumed for the

most constructive purposes”); Americans for Prosperity Found., 594 U.S. at 617 (contributors have “reason

to remain anonymous”); Watchtower Bible & Tract

Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150,

166 (2002) (in “a free society” “there are a significant

number of persons who support causes anonymously”). That is as true for businesses as anyone

else: “The mere facts of carrying on a commerce … and

of being organized as a corporation do not make men’s

affairs public.” FTC v. American Tobacco Co., 264

U.S. 298, 305 (1924). The First Amendment’s protections apply “whether the beliefs sought to be advanced by association pertain to political, economic,

religious or cultural matters.” NAACP v. Alabama,

357 U.S. at 460; see also Americans for Prosperity

Found., 594 U.S. at 617 (“these organizations span

the ideological spectrum, and indeed the full range of

human endeavors”). Organizations of all kinds are

guaranteed “the constitutional privilege to be secure

in associations.” Gibson, 372 U.S. at 558.

III.

Timely Access To Federal Courts Is Critical For

Associations Seeking To Vindicate The First

Amendment Privilege

Because investigative demands can in themselves

chill associations’ First Amendment rights, see Buckley, 424 U.S. at 64 (“compelled disclosure, in itself, can

seriously infringe on privacy of association”); Media

Matters, 138 F.4th at 580 (“subpoena power can be

abused to target viewpoints, chill speech, and silence

and intimidate organizations”), this Court has held

that “the power of compulsory process [must] be carefully circumscribed” when “free and private association” is threatened, Gibson, 372 U.S. at 558.

The risk of government abusing investigative demands to silence disfavored speech requires close judicial scrutiny. The Court has made clear that requirements compelling disclosure of expressive associations’ confidential internal materials must satisfy

“strict scrutiny” or, at a minimum, “exacting scrutiny.” See Americans for Prosperity Found., 594 U.S.

at 619 (Thomas, J., concurring in part and concurring

in the judgment) (“strict scrutiny [applies] to laws

that compel disclosure of protected First Amendment

association”); id. at 606–08 (plurality opinion) (“exacting scrutiny” applies to “compelled disclosure” requirements); id. at 623 (Alito, J., concurring in part

and concurring in the judgment) (“I see no need to decide which standard should be applied here.”). That

includes investigative requests.

When a State demands an association’s confidential internal materials and is unwilling to tailor those

demands to the association’s assertion of its First

Amendment privilege, the best course for the association may be to bring an action to enjoin the demand

under 42 U.S.C. § 1983. Congress enacted § 1983 to

provide a federal cause of action “to vindicate rights

protected by the Constitution.” Medina v. Planned

Parenthood S. Atl., 145 S. Ct. 2219, 2229 (2025). Section 1983 provides plaintiffs “access to a federal forum

for claims of unconstitutional treatment at the hands

of state officials,” Heck v. Humphrey, 512 U.S. 477,

480 (1994), including “for the alleged violation of their

First Amendment rights,” O’Connor-Ratcliff v. Garnier, 601 U.S. 205, 207 (2024) (per curiam). “The very

purpose of § 1983,” this Court has stated, is “to interpose the federal courts between the States and the

people, as guardians of the people’s federal rights.”

Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 503

(1982) (quoting Mitchum v. Foster, 407 U.S. 225, 242

(1972)).

The federal forum Congress guaranteed must be

promptly available in cases like this one. The “general rule” under § 1983 is that plaintiffs may bring

their constitutional claims “without first bringing any

sort of state lawsuit, even when state court actions

addressing the underlying behavior are available.”

Knick v. Twp. of Scott, 588 U.S. 180, 194 (2019). “The

federal remedy is supplementary to the state remedy,

and the latter need not be first sought and refused before the federal one is invoked.” Monroe v. Pape, 365

U.S. 167, 183 (1961). Otherwise, the § 1983 plaintiff

would continually find “himself in a Catch-22” where

“[h]e cannot go to federal court without going to state

court first” but “if he goes to state court and loses, his

claim will be barred in federal court” by preclusion

doctrines. Knick, 588 U.S. at 184–85; cf. Williams v.

Reed, 145 S. Ct. 465, 470 (2025) (even in their own

courts States may not apply exhaustion rules that “in

effect immuniz[e] state officials from § 1983 claims”).

The Third Circuit’s ruling illustrates this “preclusion trap.” See Knick, 588 U.S. at 185. In affirming

dismissal, the panel majority expressed its “belie[f]

that the state court will adequately adjudicate First

Choice’s constitutional claims.” Pet. App. 4a–5a. But

that assurance rings hollow because, as the District

Court acknowledged, after any state court litigation

concludes, res judicata will “totally prohibit Plaintiff

from accessing federal courts.” Pet. App. 54a; see also,

e.g., Exxon Mobil Corp., 28 F.4th at 388 (“Exxon’s

claims against the Massachusetts Attorney General

are precluded by the doctrine of res judicata”); Smith

& Wesson Brands, 105 F.4th at 83 (“Smith & Wesson’s

federal claims are barred by claim preclusion”).

Judge Bibas’s dissent recognized the harmful

chilling effects of the panel majority’s ruling. “[T]his

case,” he said, “is indistinguishable from Americans

for Prosperity Foundation.” Pet. App. 3a. There, this

Court held that the First Amendment prohibited California’s Attorney General from compelling certain

charities to provide him with the identities of their

major donors. 594 U.S. at 600–01. In doing so, the

Court repeatedly praised the federal district judge’s

handling of that pre-enforcement challenge. See, e.g.,

id. at 619 (“The District Court correctly entered judgment in favor of the petitioners and permanently enjoined the Attorney General from collecting their

Schedule Bs.”), 616 n.* (“After two full bench trials,

the court found that the Attorney General’s promise

of confidentiality ‘rings hollow’”), 613 (“the record amply supports the District Court’s finding” the collection was unnecessary). This Court never so much as

hinted that the District Court should have refrained

from exercising jurisdiction under § 1983.

Denial of the federal forum Congress authorized to

vindicate federal rights is always harmful, and especially so in the First Amendment context. “The loss

of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury.” Mahmoud v. Taylor, 145 S. Ct. 2332, 2364

(2025) (quoting Roman Cath. Diocese of Brooklyn v.

Cuomo, 592 U.S. 14, 19 (2020)). At best, the Third

Circuit’s approach delays federal adjudication of First

Amendment rights; at worst, it denies a federal forum

altogether.

No one doubts the obligation of the state courts to

faithfully apply federal law. See U.S. Const. art. VI,

cl. 2; Testa v. Katt, 330 U.S. 386, 393 (1947). But state

judges lack Article III protection and so are sometimes susceptible to the influence of state politics. See

NAACP v. Alabama, 357 U.S. at 463 (“the State has

here acted solely through its judicial branch”); The

Federalist No. 81, at 421 (Alexander Hamilton) (Liberty Fund ed. 2001) (“State judges, holding their offices during pleasure, or from year to year, will be too

little independent to be relied upon for an inflexible

execution of the national laws”). Congress provided a

federal cause of action to guarantee the availability of

a neutral and independent decisionmaker when federal rights are at stake. That remedy must remain

available so that speech and associational rights are

not chilled by unchecked state investigative demands.

CONCLUSION

The Court should reverse.

Respectfully submitted,