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

Supreme Court briefAug 28, 2025

Ask Donna

What actually matters in this document.

Text

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 OF AMICUS CURIAE THE REPORTERS

COMMITTEE FOR FREEDOM OF THE PRESS

IN SUPPORT OF PETITIONER

Bruce D. Brown

Counsel of Record

Lisa Zycherman

Gabe Rottman

Mara Gassmann

Grayson Clary

Allyson Veile

REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

1156 15th St. NW,

Suite 1020

Washington, D.C. 20005

bruce.brown@rcfp.org

(202) 795-9300

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

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

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

ARGUMENT ................................................................. 4

Retaliatory investigative demands impose

chilling burdens on the press. .......................... 4

II. When retaliatory investigations burden the

press, the First Amendment requires prompt

access to a federal forum. .................................. 8

CONCLUSION............................................................ 12

TABLE OF AUTHORITIES

Cases

Abbott Lab’ys v. Gardner,

387 U.S. 136 (1967) ................................................. 10

Americans for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) ................................................... 3

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ..................................................... 3

Bates v. City of Little Rock,

361 U.S. 516 (1960) ................................................... 3

Branzburg v. Hayes,

408 U.S. 665 (1972) ............................................... 4, 9

Chevron Corp. v. Berlinger,

629 F.3d 297 (2d Cir. 2011) ...................................... 7

City of Houston v. Hill,

482 U.S. 451 (1987) ................................................. 11

Dombrowski v. Pfister,

380 U.S. 479 (1965) ................................................. 12

Elrod v. Burns,

427 U.S. 347 (1976) ................................................. 11

Hartman v. Moore,

547 U.S. 250 (2006) ................................................... 3

iii

Heck v. Humphrey,

512 U.S. 477 (1994) ................................................. 10

Knick v. Twp. of Scott, Pa.,

588 U.S. 180 (2019) ................................................. 12

Media Matters for Am. v. Paxton,

138 F.4th 563 (D.C. Cir. 2025) ................. 3, 6, 11, 12

Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974) ............................................... 3, 8

Mills v. Alabama,

384 U.S. 214 (1966) ................................................... 4

Monroe v. Pape,

365 U.S. 167 (1961) ................................................... 4

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) ................................................... 4

Nat’l Rifle Ass’n v. Vullo,

602 U.S. 175 (2024) ............................................. 3, 12

Neb. Press Ass’n v. Stuart,

423 U.S. 1327 (1975) ................................................. 8

Patsy v. Bd. of Regents,

457 U.S. 496 (1982) ................................................. 10

Riley v. City of Chester,

612 F.2d 708 (3d Cir. 1979) ...................................... 7

Shoen v. Shoen,

5 F.3d 1289 (9th Cir. 1993) ...................................... 8

Speiser v. Randall,

357 U.S. 513 (1958) ................................................... 6

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) .................................................. 7

U.S. News & World Rep., L.P. v. Chiu,

No. 24-CV-00395-WHO, 2024 WL 2031635 (N.D.

Cal. May 7, 2024) ...................................................... 9

United States v. Cuthbertson,

630 F.2d 139 (3d Cir. 1980) ...................................... 8

United States v. LaRouche Campaign,

841 F.2d 1176 (1st Cir. 1988) ................................... 8

Zerilli v. Smith,

656 F.2d 705 (D.C. Cir. 1981) .................................. 7

Statutes

42 U.S.C. § 1983 ............................................................ 4

42 U.S.C. § 1988 .......................................................... 11

N.J. Stat. § 2A:84A-21.8 ............................................. 11

Other Authorities

Br. of Amici Curiae Media Orgs. in Supp. of Pl.’s

Mot. for Prelim. Inj. & in Opp’n to Def.’s Mot. to

Dismiss & to Strike, U.S. News & World Rep., L.P.

v. Chiu, No. 3:24-cv-00395 (N.D. Cal. Mar. 20,

2024) ........................................................................... 2

RonNell Andersen Jones, Media Subpoenas: Impact,

Perception, and Legal Protection in the Changing

World of American Journalism, 84 Wash. L. Rev.

317 (2009) .................................................................. 7

S.F. City Att’y, U.S. News & World Report Faces

Legal Scrutiny Over Dubious Hospital Rankings,

(June 20, 2023), https://perma.cc/K9CS-38AJ ........ 9

INTEREST OF AMICUS CURIAE1

Amicus is the Reporters Committee for

Freedom of the Press (“Reporters Committee”), an

unincorporated nonprofit association founded by

leading journalists and media lawyers in 1970, when

the nation’s news media faced an unprecedented wave

of government subpoenas forcing reporters to name

confidential sources. Today, its attorneys provide pro

bono legal representation, amicus curiae support, and

other legal resources to protect First Amendment

freedoms and the newsgathering rights of journalists.

As an organization that defends the rights of

journalists and news organizations, amicus has a

strong interest in preserving prompt access to a

federal forum when state officials misuse

investigatory demands to undermine the freedom of

the press. The Reporters Committee has often

appeared as amicus curiae in the federal courts when

the same issue presented here has threatened to chill

the speech of news organizations. See, e.g., Br. of

Amici Curiae Media Orgs. in Supp. of Pl.’s Mot. for

Prelim. Inj. & in Opp’n to Def.’s Mot. to Dismiss & to

Strike, U.S. News & World Rep., L.P. v. Chiu, No.

3:24-cv-00395 (N.D. Cal. Mar. 20, 2024).

Pursuant to Supreme Court Rule 37, counsel for amicus

curiae state that no party’s counsel authored this brief in whole

or in part; no party or party’s counsel made a monetary

contribution intended to fund the preparation or submission of

this brief; and no person other than the amicus curiae, its

members or its counsel made a monetary contribution intended

to fund the preparation or submission of this brief.

SUMMARY OF THE ARGUMENT

The First Amendment protects free speech and

a free press “not only against heavy-handed frontal

attack, but also from being stifled by more subtle

governmental interference.” Bates v. City of Little

Rock, 361 U.S. 516, 523 (1960). The Constitution

therefore prohibits officials “from subjecting an

individual to retaliatory actions” for their speech,

Hartman v. Moore, 547 U.S. 250, 256 (2006), whether

by relying on the “threat of invoking legal sanctions,”

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67

(1963), or by seeking the “compelled disclosure” of

sensitive information to achieve the same,

intimidating result, Americans for Prosperity Found.

v. Bonta, 594 U.S. 595, 606 (2021); see also Media

Matters for Am. v. Paxton, 138 F.4th 563, 580 (D.C.

Cir. 2025) (“[B]ad faith use of investigative techniques

can abridge journalists’ First Amendment rights.”).

In this case, though, the U.S. Court of Appeals for the

Third Circuit held that a speaker who receives a

retaliatory investigative demand is shut out of

seeking relief in federal court until state enforcement

proceedings unfold, see Pet. App. 4a—a holding that

would invite burdensome, bad-faith investigations

that “use the power of the State to punish or suppress

disfavored speech,” Nat’l Rifle Ass’n v. Vullo, 602 U.S.

175, 188 (2024).

Amicus writes to highlight the threat such a

rule would pose to the First Amendment rights of the

press in particular.

The Constitution provides

virtually absolute protection for “the exercise of

editorial control and judgment,” Miami Herald Publ’g

Co. v. Tornillo, 418 U.S. 241, 258 (1974); see also

Moody v. NetChoice, LLC, 603 U.S. 707, 738 (2024),

but regulatory agencies and state officials have

nevertheless claimed broad investigative power to

scrutinize news coverage they find ‘unfair.’ Demands

that media organizations justify their viewpoint to the

government not only threaten the confidentiality of

reporters’ sources and work product, they also

inevitably divert time and funds away from the press’s

core constitutional function. See Mills v. Alabama,

384 U.S. 214, 219 (1966) (emphasizing that the

“Constitution specifically selected the press” to fulfill

an “important role” in our democracy). Faced with the

prospect of a bad-faith investigation that imposes

those costs—and absent hope of prompt relief from a

federal court—some news organizations may simply

avoid reporting on matters that could antagonize the

wrong vindictive official.

To avoid just those harms, Congress

guaranteed speakers immediate access to a federal

forum when their First Amendment rights are

violated, see 42 U.S.C. § 1983, without first requiring

that they exhaust any uncertain remedies that might

be available in state court, see Monroe v. Pape, 365

U.S. 167, 183 (1961). The Third Circuit’s contrary

rule—which would allow state officials to leave the

threat of costly enforcement proceedings hanging over

the head of any news organization they “think[]

biased,” NetChoice, LLC, 603 U.S. at 719—

undermines clear congressional intent and creates an

obvious risk of “[o]fficial harassment of the press”

beyond the facts of this particular case. Branzburg v.

Hayes, 408 U.S. 665, 707 (1972). This Court should

reverse.

Because the harms of a retaliatory

investigative demand set in as soon as the inquiry

lands in a news organization’s inbox, amicus

respectfully urges this Court to make clear that a

federal forum is available just as quickly.

ARGUMENT

Retaliatory investigative demands impose

chilling burdens on the press.

Among the First Amendment’s most vital

safeguards for a free press is its protection for

“editorial control,” Tornillo, 418 U.S. at 258; choices

about what to say and what not to say about “public

issues and public officials—whether fair or unfair,”

id.; see also TikTok, Inc. v. Garland, 604 U.S. 56, 73

(2025) (Gorsuch, J., concurring) (the First

Amendment shields “judgments about what stories to

tell and how to tell them”). Whether the particular

speaker is a newspaper, a lone pamphleteer, or an

advocacy organization like the Petitioner, the state

has no legitimate interest in commandeering that

process to impose choices it finds better balanced or

more “responsible.” Tornillo, 418 U.S. at 256; see also

NetChoice, LLC, 603 U.S. at 741–42 (“On the

spectrum of dangers to free expression, there are few

greater than allowing the government to change the

speech of private actors in order to achieve its own

conception of speech nirvana.”).

In an effort to evade those constraints,

regulatory officials of all stripes routinely repackage

their efforts to enforce editorial fairness as

investigations into consumer fairness. Compare, e.g.,

Pet. App. 111a–47a (alleging that the investigative

demand here was issued in retaliation for Petitioner’s

pro-life advocacy), with Yelp Inc. v. Paxton, 137 F.4th

944, 955 (9th Cir. 2025) (challenge to investigative

demand allegedly issued “in retaliation for Yelp’s

support of abortion rights”). And the news media is

vulnerable to the same harassment, whatever point of

view a critic thinks their coverage stands for.

Compare, e.g., Press Release, Fed. Trade Comm’n,

Statement of Federal Trade Commission Chairman

Timothy J. Muris on the Complaint Filed Today by

MoveOn.org (July 19, 2004), https://perma.cc/X6X9H8VM (rejecting complaint asking the Federal Trade

Commission to judge whether Fox News’s use of the

slogan “Fair and Balanced” is a deceptive trade

practice), with Media Matters for Am., 138 F.4th at

569–70 (enjoining a retaliatory investigation of Media

Matters for consumer fraud for publishing “an

unfavorable article about X.com”).

When a bad-faith investigative demand issues

to a news organization, harms to the freedom of the

press begin accruing immediately. First and most

fundamentally, even where a publisher’s conduct is

unimpeachable, “[t]he man who knows that he must

bring forth proof and persuade another of the

lawfulness of his conduct necessarily must steer far

wider of the unlawful zone.” Speiser v. Randall, 357

U.S. 513, 526 (1958). Even if the demand is never

enforced, it hangs like a sword of Damocles over the

outlet, discouraging further reporting on the same

topic and undermining the free flow of information to

the public. See Media Matters for Am., 138 F.4th at

581 (noting that Media Matters “pared back its

reporting” on topics related to the story that had

attracted the original investigation).

Then come the practical strains. Whether a

news organization complies with or challenges an

investigative demand, its receipt immediately

requires the “diver[sion of] significant time and

resources to hire legal counsel and respond to

discovery requests.”

Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 165 (2014). As a 2009 study

recounts, “time spent responding to subpoenas[,]

whether complying or challenging” can be a

significant cost to newsrooms, not only in legal fees

and potential court costs, but also in diversion of staff

time and resources away from reporting the news.

RonNell Andersen Jones, Media Subpoenas: Impact,

Perception, and Legal Protection in the Changing

World of American Journalism, 84 Wash. L. Rev. 317,

354–55 (2009). One respondent remarked, “I hear

people in the business say all the time now that they

just can’t do [investigative journalism] anymore,

because they can’t afford to have that kind of time

spent on subpoenas.” Id. at 360–61.

On top of those burdens, investigative demands

can undermine the confidentiality of journalists’

sources and work product—confidentiality essential

to their ability to do their jobs. As any number of

courts have recognized, “[c]ompelling a reporter to

disclose the identity of a source may significantly

interfere with this news gathering ability; journalists

frequently depend on informants to gather news, and

confidentiality is often essential to establishing a

relationship with an informant.” Zerilli v. Smith, 656

F.2d 705, 711 (D.C. Cir. 1981); accord Chevron Corp.

v. Berlinger, 629 F.3d 297, 307 (2d Cir. 2011); Riley v.

City of Chester, 612 F.2d 708, 714 (3d Cir. 1979). The

disclosure of work product, too, “may substantially

undercut the public policy favoring the free flow of

information to the public.”

United States v.

Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980); see also

United States v. LaRouche Campaign, 841 F.2d 1176,

1182 (1st Cir. 1988). And on each front, even the

perception that a reporter could be recruited as an

investigative arm of government can cause journalists

to be “shunned by persons who might otherwise give

them

information

without

promise

confidentiality, barred from meetings which they

would otherwise be free to attend and to describe, or

even physically harassed if, for example, observed

taking notes or photographs at a public rally.” Shoen

v. Shoen, 5 F.3d 1289, 1295 (9th Cir. 1993).

Efforts to compel the press to provide

information to state officials about their reporting

therefore “exact[] a penalty” on that very coverage—a

penalty felt as soon as the demand issues. Tornillo,

418 U.S. at 256. And all of those injuries can accrue,

too, even if a media organization ultimately has a

meritorious objection (under state law or otherwise) to

producing the information sought. In the interim,

“each passing day” that newsgathering is burdened by

a retaliatory investigatory demand will successfully

inflict an irreparable First Amendment injury, and

the practical and constitutional harms will continue

to pile up until the investigation is successfully

quashed. Neb. Press Ass’n v. Stuart, 423 U.S. 1327,

1329 (1975).

II.

When retaliatory investigations burden

the press, the First Amendment requires

prompt access to a federal forum.

In light of the immediate First Amendment

injuries a retaliatory investigative demand inflicts,

refusing to redress “[o]fficial harassment of the press”

before a news organization musters through a statecourt proceeding would make little sense. Branzburg,

408 U.S. at 707.

Nevertheless, some courts—

following substantially the same course the Third

Circuit took here—have made it difficult or impossible

for news outlets to obtain prompt relief in federal

court from retaliatory investigations.

In June 2023, for instance, San Francisco’s City

Attorney wrote a letter to U.S. News and World

Report expressing his dissatisfaction with its “Best

Hospitals” rankings. See S.F. City Att’y, U.S. News &

World Report Faces Legal Scrutiny Over Dubious

Hospital

Rankings,

(June

20,

2023),

https://perma.cc/K9CS-38AJ. When U.S. News chose

not to alter its rankings, the City Attorney followed up

with a subpoena, demanding—now on pain of

contempt—that U.S. News disclose in detail its “basis

for stating that its Best Hospitals rankings are ‘how

to find the best medical care in 2023,’” and that the

publication detail the basis for its editorial judgments

on controversial questions like the decision not to

“includ[e] measures of health equity in its rankings.”

U.S. News & World Rep., L.P. v. Chiu, No. 24-CV00395-WHO, 2024 WL 2031635, at *2 (N.D. Cal. May

7, 2024). But when U.S. News brought suit in federal

court seeking relief from the subpoenas on First

Amendment grounds, its claim was never heard on

the merits; instead, the district court dismissed the

case as unripe, pointing the publication to state court.

Id. at *12.

That result has no sound constitutional or

statutory basis, but Respondent would have it be the

rule. Requiring that the recipient of a retaliatory

investigative demand first raise the First Amendment

as a defense in state court flies in the face of the

general rule that “exhaustion of state remedies is not

a prerequisite to an action under § 1983.” Heck v.

Humphrey, 512 U.S. 477, 480 (1994) (internal

quotation marks omitted).

On the contrary,

“Congress intended . . . to throw open the doors of the

United States courts to individuals who were

threatened with, or who had suffered, the deprivation

of constitutional rights, and to provide these

individuals immediate access to the federal courts

notwithstanding any provision of state law to the

contrary.” Patsy v. Bd. of Regents, 457 U.S. 496, 504

(1982) (internal citation and quotation marks

omitted). The statute has no exception for state

officials who act under the color of an investigative

demand in particular when abridging First

Amendment rights.

This Court’s ripeness precedent likewise

provides no support for the Third Circuit’s rule.

Whether a suit is ripe for purposes of Article III

weighs “both the fitness of the issues for judicial

decision and the hardship to the parties of

withholding court consideration.” Abbott Lab’ys v.

Gardner, 387 U.S. 136, 148 (1967). As already

canvassed above, the hardship to a news organization

forced to await enforcement proceedings is

substantial. In just that vein, this Court has often

recognized that deference to state courts is generally

inappropriate in First Amendment cases, because “to

force the plaintiff who has commenced a federal action

to suffer the delay of state-court proceedings might

itself effect the impermissible chilling of the very

constitutional right he seeks to protect.” City of

Houston v. Hill, 482 U.S. 451, 467–68 (1987) (internal

citation omitted). Here too, because the prospect of

defending a lawsuit brought by the state attorney

general would itself “deter persons of ordinary

firmness from exercising their First Amendment

rights,” Media Matters for Am., 138 F.4th at 581, the

“special burdens on their newsgathering activities”

that a retaliatory investigative demand can inflict set

in immediately, id.

Successfully raising a defense in state court—

constitutional or otherwise—will not make good those

harms. Even where a recipient prevails, the practical

costs of litigating in state court may be unrecoverable

if state law makes less generous provision for

attorney’s fees than a federal action would have.

Compare, e.g., N.J. Stat. § 2A:84A-21.8 (under New

Jersey’s shield law, permitting discretionary recovery

of attorneys’ fees upon a finding that there was “no

reasonable basis for requesting the information”),

with 42 U.S.C. § 1988 (permitting award of attorneys’

fees to a “prevailing party”). But more fundamentally,

nothing that might happen at the end of state

proceedings will solve for the interim hardship of

“current self-censorship in [a news organization’s]

reporting,” Media Matters for Am., 138 F.4th at 585,

because “[t]he loss of First Amendment freedoms, for

even minimal periods of time,” is “irreparable,” Elrod

v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion).

In the face of those serious costs, awaiting

enforcement proceedings in state court does little or

nothing to sharpen the issues for judicial decision.

Any interpretation of the attorney general’s

investigative authority that a state court might

offer—even if it meant the recipient “might ultimately

prevail in the state courts”—“would not alter the

impropriety of [the official] invoking the statute in bad

faith to impose continuing harassment in order to

discourage” First Amendment activity. Dombrowski

v. Pfister, 380 U.S. 479, 490 (1965); see also Knick v.

Twp. of Scott, 588 U.S. 180, 193 (2019) (the fact that

a state court may later provide a remedy for a state

official’s unconstitutional conduct does not “mean[]

there never was a constitutional violation in the first

place”). And symmetrically, a state court’s conclusion

that a demand is superficially within an official’s

powers under state law would not license issuing the

demand in retaliation for speech or newsgathering.

See Vullo, 602 U.S. at 183–84 (prima facie authority

to take enforcement action under state law did “not

excuse Vullo from allegedly employing coercive

threats to stifle gun-promotion advocacy”). Either

way, nothing is gained by requiring that the case first

proceed in state court.

The decision under review, then, advances no

particular interest and would offer a blueprint for the

“bad faith use of investigative techniques [to] abridge

journalists’ First Amendment rights.” Media Matters

for Am., 138 F.4th at 580. This Court should reject

that result. Common sense, congressional intent, and

the First Amendment all make the same point clear:

Because the harms of a retaliatory investigative

demand are felt immediately, the federal courthouse

doors are open immediately. To ensure prompt

redress is available to journalists and others targeted

unconstitutional

investigations,

amicus

respectfully urges the Court to reverse.

CONCLUSION

For the foregoing reasons, amicus respectfully

urges the Court to reverse.

Respectfully submitted,