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

__________________

FIRST CHOICE WOMEN’S RESOURCE CENTERS, INC.,

Petitioner,

v.

MATTHEW J. 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 NATIONAL TAXPAYERS UNION

FOUNDATION AS AMICUS CURIAE

IN SUPPORT PETITIONER

__________________

TYLER MARTINEZ

Counsel of Record

NATIONAL TAXPAYERS

UNION FOUNDATION

122 C Street N.W., #700

Washington, D.C. 20001

tmartinez@ntu.org

(703) 683-5700

August 28, 2025

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

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

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

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

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

I. THE GOVERNMENT MUST SURVIVE

EXACTING SCRUTINY WHENEVER IT

DEMANDS DONOR LISTS............................. 4

A. Exacting Scrutiny Exists to Protect an

Organization’s Donor List. .................................. 5

B. Donor Privacy Protections Apply to Even

Routine Business Disclosures. .......................... 10

II. GOVERNMENTS ARE USING OTHER

SUBPOENAS TO DEMAND DONOR LISTS

AS WELL. ....................................................... 12

CONCLUSION.......................................................... 15

ii

TABLE OF AUTHORITIES

Cases

Americans for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) ............................. 2, 6, 8, 10, 13

Bates v. Little Rock,

361 U.S. 516 (1960) ....................................... 3, 6, 13

Buckley v. Valeo,

424 U.S. 1 (1976) ............................................. 6, 7, 8

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ............................................... 10

Doe v. Reed,

561 U.S. 186 (2010) ............................................... 11

Gibson v. Fla. Legis. Comm.,

372 U.S. 539 (1963) ................................................. 6

Kusper v. Pontikes,

414 U.S. 51 (1973) ................................................... 7

McConnell v. Fed. Election Comm’n,

540 U.S. 93 (2003) ................................................. 10

McConnell v. Fed. Election Comm’n,

251 F. Supp.2d 176 (D.D.C. 2003) ........................ 10

McCutcheon v. Fed. Election Comm’n,

572 U.S. 185 (2014) ................................................. 8

NAACP v. Ala. ex rel. Patterson,

357 U.S. 449 (1958) ................................... 3, 6, 7, 13

NAACP v. Button,

371 U.S. 415 (1963) ............................................. 6, 7

Nat’l Inst. of Fam. & Life Advocs. v. Becerra,

585 U.S. 755 (2018) ............................................... 12

iii

Nat’l Taxpayers Union v. Cal. Franchise Tax Board,

No. 24CV016118

(Superior Ct. Cal., Sacramento Cnty.) ..... 14, 15, 16

Nat’l Taxpayers Union, Inc. v. United States,

68 F.3d 1428 (D.C. Cir. 1995) ............................... 16

Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377 (2000) ............................................. 8, 9

Shelton v. Tucker,

364 U.S. 479 (1960) ....................................... 6, 7, 13

Talley v. Cal.,

362 U.S. 60 (1960) ................................................... 6

United States v. Nat’l Treasury Emps. Union,

513 U.S. 454 (1995) ................................................. 9

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021) ................................................... 3

Wis. Right to Life, Inc. v. Barland,

751 F.3d 804 (7th Cir. 2014) ................................... 8

Statutes

Cal. Rev. & Tax. Code § 25128.9 .............................. 12

Other Authorities

Brian Hawkins, Legal Fight Over Texas Abortion

Law Spurs Donor Privacy Concerns, PEOPLE

UNITED FOR PRIVACY (Nov. 14, 2023) .................... 14

Carter Sherman, Texas lawyer asks abortion funds

for details of every procedure since 2021, THE

GUARDIAN (Sept. 28, 2023) .................................... 14

Fraud, BLACK’S LAW DICTIONARY (12th ed. 2024)...... 9

1

INTEREST OF AMICUS CURIAE1

Founded in 1973, the National Taxpayers Union

Foundation (NTUF) is a non-partisan research and

educational organization dedicated to showing

Americans how taxes, government spending, and

regulations affect everyday life. NTUF advances

principles of limited government, simple taxation, and

transparency on both the state and federal levels.

NTUF’s Taxpayer Defense Center advocates for

taxpayers in the courts, producing scholarly analyses

and engaging in direct litigation and amicus curiae

briefs upholding taxpayers’ rights, challenging

administrative overreach by tax authorities, and

guarding against unconstitutional burdens on

interstate commerce.

Pursuant to that mission, NTUF brings

challenges on behalf of itself, its sister 501(c)(4)

organization, and others under associational

standing. In doing so, NTUF has need to protect donor

privacy in a variety of litigation in other jurisdictions

like California, including defending against tactics

similar to those used by New Jersey in this case.

Accordingly, Amicus has an institutional interest in

this case.

Pursuant to Supreme Court Rule 37, counsel for Amicus

represents that none of the parties or their counsel, nor any other

person or entity other than Amicus or its counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief.

1

2

SUMMARY OF THE ARGUMENT

This case presents this Court with the opportunity

to reaffirm the principle that the government must

survive exacting scrutiny anytime it seeks nonprofit

donor lists. Such a categorical rule will not break the

system, for this Court has allowed uses of donor lists

for appropriate needs or electioneering regulations to

survive exacting scrutiny. At the same time, however,

novel uses of existing laws to demand broad disclosure

of donors will need to be met with proof of a weighty

enough interest and proper narrow tailoring to that

interest, as this Court articulated most recently

articulated in Americans for Prosperity Foundation v.

Bonta, 594 U.S. 595 (2021) (“AFPF”).

Here, New Jersey demands the complete donor

list of a pro-life pregnancy center so that the state may

take a “representative sample” to see how consumers

and supporters understand the work of First Choice.

This pretextual use of a general consumer protection

statute is fraught with danger to core First

Amendment and Fourteenth Amendment freedoms.

Fraud investigations should not be lightly applied to

one of the most controversial topics in modern political

debate in America.

This Court has long understood that for all the

important quotes and tests protecting donor privacy

from AFPF and its application of landmark Civil

Rights cases, the underlying laws were seemingly

commonplace but abused and weaponized to harass

political opponents. In NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449 (1958) (“NAACP”), the state

used a routine business registration law as a hook to

try to suss out the supporters of a group the

3

government officials did not like. Bates v. Little Rock,

361 U.S. 516 (1960), started with a simple—indeed

boring and routine—license tax to operate in a city

which was used to demand the donor lists of the

NAACP. But these banal business registration laws

were weaponized to attack ideological foes. So too

here. Applying the clear precedents from this Court

will show New Jersey cannot meet its burden under

exacting security.

Importantly and unfortunately, this case is no

outlier. States are beginning to use statutes like the

one at issue here as well as general subpoena powers

in ordinary litigation to demand donor lists. Amicus is

currently in a fight to protect the donors of National

Taxpayers Union in a challenge to a retroactive state

tax increase. Yet California demands the complete list

of donors, under the guise of assuring standing. Texas

likewise demanded the donor lists of pro-choice groups

fighting S.B. 8, the subject of this Court’s decision in

Whole Woman’s Health v. Jackson, 595 U.S. 30, 35

(2021). Such demands turn this Court’s doctrine of

associational standing on its head. In order to

represent its members, associations now risk invasive

demands for the identities of their supporters.

This case presents the opportunity for this Court

to (1) clarify that exacting scrutiny applies any time

the government is seeking donor lists and (2) that

novel use of everyday laws must meet exacting

scrutiny. Doing so will help end creative uses—really,

abuses—of provisions to deter a government official’s

ideological foes.

4

ARGUMENT

I.

THE GOVERNMENT MUST SURVIVE

EXACTING SCRUTINY WHENEVER IT

DEMANDS DONOR LISTS.

The New Jersey Attorney General demands the

donor lists of organizations to which he is ideologically

opposed. See Pet.App.89a–110a (demand for donor

list); J.A. 363–64 (multiple Attorneys General letter

decrying pro-life pregnancy centers); J.A. 379

(signature of Respondent to that letter); Opening Br.

of Pet. at 7–8 (discussing same). The Attorney General

seeks “present or last known place of employment of

every one of First Choice’s donors who gave through

any means other than one specific website marketed

towards its donors.” See Opening Br. of Pet. 9 (citing

Pet.App.98a, 100a.).2 The state claims it needs donor

names and contact information so that he could

“contact a representative sample and determine what

they did or did not know about their charitable

giving.” J.A. 346.

Even setting aside the obvious political animus,

getting a “representative sample” is not a weighty

enough interest nor is it narrowly tailored to survive

the First Amendment’s exacting scrutiny. New

Jersey’s demand is not truly pursuant to an important

interest that can only be resolved by narrowly tailored

compelled disclosure. New Jersey’s demand for donor

The state also demands copies of all donor solicitations and

every document or video provided to donors over a nearly threeyear period. See Pet.App.90a, 100a–02a.

2

5

lists is pretextual and a thin read of consumer

protection laws.

A. Exacting Scrutiny Exists to Protect an

Organization’s Donor List.

Under Americans for Prosperity Foundation v.

Bonta, 594 U.S. 595 (2021) (“AFPF”) and other

landmark cases dating back to the Civil Rights Era,3

any government demand for membership or donor

lists must survive the First Amendment’s exacting

scrutiny. Exacting scrutiny “requires that there be a

substantial relation between the disclosure

requirement

and

a

sufficiently

important

governmental interest” and that “the disclosure

requirement be narrowly tailored to the interest it

promotes.” Id. at 611 (citations omitted).

Exacting scrutiny is required because this Court

has long recognized that “[e]ffective advocacy of both

public and private points of view, particularly

controversial ones, is undeniably enhanced by group

association,” and that there is a “vital relationship

between freedom to associate and privacy in one’s

associations.” NAACP, 357 U.S. at 460–61, 462. This

language recognizes two rights: (1) to engage in debate

concerning public policies and issues and (2) to

effectuate that right, to associational privacy.

See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam);

NAACP v. Button, 371 U.S. 415 (1963) (“Button”); Gibson v.

Florida Legislative Comm., 372 U.S. 539 (1963); Talley v. Cal.,

362 U.S. 60 (1960); Shelton v. Tucker, 364 U.S. 479 (1960); Bates

v. Little Rock, 361 U.S. 516 (1960); NAACP v. Ala. ex rel.

Patterson, 357 U.S. 449 (1958) (“NAACP”).

3

6

All Americans have the right “to pursue their

lawful private interests privately and to associate

freely with others in so doing.” Id. at 466. This “basic

constitutional protection[],” Kusper v. Pontikes, 414

U.S. 51, 57 (1973), “‘lies at the foundation of a free

society,’” Buckley, 424 U.S. at 25 (quoting Shelton v.

Tucker, 364 U.S. 479, 486 (1960). This includes

presenting support and information from a pro-life

viewpoint (or the opposite).

Therefore, freedom of association must be

protected “not only against heavy-handed frontal

attack, but also from being stifled by more subtle

governmental interference,” such as registration and

disclosure requirements and the attendant sanctions

for failing to disclose. Bates, 361 U.S. at 523 (collecting

cases); see also Button, 371 U.S. at 433 (noting that

the freedoms of speech and association are “delicate

and vulnerable” to “[t]he threat of sanctions [which]

may deter their exercise almost as potently as the

actual application of sanctions”). Indeed, just three

years ago, this Court reaffirmed that there is a “vital

relationship between freedom to associate and privacy

in one’s associations” via financial support. AFPF, 594

U.S. at 606.

Exacting scrutiny is “not a loose form of judicial

review.” Wis. Right to Life, Inc. v. Barland, 751 F.3d

804, 840 (7th Cir. 2014). It is instead a “strict test,”

Buckley, 424 U.S. 66, requiring an analysis of the

burdens imposed, and whether those burdens advance

the government’s stated interest because, “[i]n the

First Amendment context, fit matters.” McCutcheon v.

Fed. Election Comm’n, 572 U.S. 185, 218 (2014)

(Roberts, C.J., controlling opinion).

7

If a law impacting core First Amendment

freedoms is novel, and not merely a retread of alreadyapproved interests and tailoring, then the government

must provide concrete evidence that the new law also

survives the heightened scrutiny. See Nixon v. Shrink

Mo. Gov’t PAC, 528 U.S. 377, 391 (2000) (“The

quantum of empirical evidence needed to satisfy

heightened judicial scrutiny of legislative judgments

will vary up or down with the novelty and plausibility

of the justification raised”). Nixon is an important

safety value for heightened First Amendment

scrutiny: once a regime is approved as having a

weighty interest and proper tailoring, then the

government need not reinvent the record needed.

Nixon applied to Missouri’s use of the same campaign

finance limits approved by this Court in the landmark

Buckley decision. See id. at 395 (“Nor do we see any

support for respondents’ various arguments that in

spite of their striking resemblance to the limitations

sustained in Buckley, those in Missouri are so

different in kind as to raise essentially a new issue

about the adequacy of the Missouri statute's tailoring

to serve its purposes.”). But importantly, the Nixon

Court rejected “mere conjecture as adequate to carry

a First Amendment burden.” Id. at 392. Instead, the

government must prove the strength of its interest.

See, e.g., United States v. Nat’l Treasury Emps. Union,

513 U.S. 454, 475 (1995) (“[W]hen the Government

defends a regulation on speech as a means to…

prevent anticipated harms, it must do more than

simply posit the existence of a disease sought to be

cured. It must demonstrate that the recited harms are

real, not merely conjectural”) (cleaned up).

8

What does such a showing of substantial interest

look like? Congress sought to significantly expand the

disclosure regime for campaign-related speech,

regulating “candidate advertisements masquerading

as issue ads” that aired shortly before an election.

McConnell v. Fed. Election Comm’n, 540 U.S. 93, 132

(2003) (cleaned up). In campaign finance parlance,

these are known as “electioneering communications”

and, prior to 2002, were never regulated by the federal

government. Applying exacting scrutiny, that

innovation required a significant showing, and the

government needed to build a 100,000-page record to

demonstrate that, at least facially, its law was

appropriately tailored to a real and concrete problem.

See McConnell v. Fed. Election Comm’n, 251 F.

Supp.2d 176, 209 (D.D.C. 2003) (three-judge court)

(per curiam); cf. Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 332 (2010) (discussing and

citing 100,000-page record amassed by dozens of

litigants in McConnell).

New Jersey has done nothing remotely close to

show whether novel use of consumer protection laws

to demand the donor disclosure of pregnancy centers

can survive exacting scrutiny. “‘To withstand this

scrutiny, the strength of the governmental interest

must reflect the seriousness of the actual burden on

First Amendment rights.’” AFPF, 594 U.S. at 607

(quoting Doe v. Reed, 561 U.S. 186, 196 (2010)). New

Jersey has a theory of both consumer and donor

confusion arising out of First Choice not providing

abortion services. But beyond the conjecture that

some may be confused that a pro-life center is, well,

9

pro-life, there is little connection to why every

supporter of a particular organization need be

disclosed to the New Jersey Attorney General. Indeed,

other than mere anxiety from the government, there

is little indication of confusion by First Choice’s

marketing materials, either to donors or to

prospective users of its services.

But even assuming, arguendo, that there was

such confusion, interviewing a “representative

sample” of donors is in no way tailored to the question

of what is said by First Choice or the truthfulness of

the statement. See J.A. 346 (New Jersey justifying the

demand for the whole donor list so investigators can

contact “a representative sample and determine what

they did or did not know about their charitable

giving.”). A “representative sample” does not do

anything to indicate if there was fraud by some sort of

concealment or false representation nor if its to any

donor or consumer’s detriment. See, e.g. Fraud,

BLACK’S LAW DICTIONARY (12th ed. 2024) (defining

fraud as “[a] knowing misrepresentation or knowing

concealment of a material fact made to induce another

to act to his or her detriment.”). That is, fraud needs

to be proven objectively by the actions and words of

the accused, not what a “sample” of donors may say.

In any event, the burden on the freedom of

association means that New Jersey must show how its

demand—a novel use of the state’s consumer

protection laws—survives exacting scrutiny. Because

the state relies on conjecture and a broad disclosure

demand for the sake of taking a mere “sample,” the

government fails exacting scrutiny.

10

B. Donor Privacy Protections Apply to

Even Routine Business Disclosures.

New Jersey positions this case under the broad

powers of the state of New Jersey to prevent consumer

fraud. J.A. 346.4 But revisiting this Court’s decisions

on donor privacy reveal that the government always

uses some excuse and claim of routine to demand

donor lists. Whether it is routine business registration

statues, which were abused by Southern states to

combat the Civil Rights movement, or a counterfeit

concern about consumer protection, the government

cannot intimidate by disclosure demands.

Each time the matter of privacy of association has

reached this Court, this Court has reiterated that

donor lists must be kept out of the hands of

government officials. Indeed, some of the most

significant cases on donor privacy were generated by

generally applicable business statutes that could be

banally described as mere financial records. NAACP

centered on the state’s use of foreign corporation

registration statutes as a means of getting the civil

rights group’s donor list. See NAACP, 357 U.S. at 451.

4 Of course, this case on the merits also implicates the restrictions

on the power of the government to regulate speech. See, e.g., J.A.

308–12 (New Jersey asserting that it wishes to investigate First

Choice due to statements on website and failure to phrase

disclaimers in the state’s preferred way); cf. Nat’l Inst. of Fam. &

Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018) (rejecting state

scheme that required clinics to “provide a government-drafted

script about the availability of state-sponsored services, as well

as contact information for how to obtain them. One of those

services is abortion—the very practice that petitioners are

devoted to opposing.”).

11

Bates, 361 U.S. at 517, examined the city’s use of

business license tax registration. Shelton, 364 U.S. at

481, dealt with employment paperwork to be

employed as schoolteacher. AFPF, 594 U.S. at 600,

centered on what should be routine charities

registration with the Attorney General of California.

Nevertheless, in each of these instances this Court has

repelled the attack on donor privacy when otherwise

broad disclosure rules would apply.

Admittedly, states generally have the power to

regulate corporations doing business within their

borders. In a similar vein, consumer fraud laws

generally do not run afoul of the First Amendment.

But when a consumer fraud law is used to demand the

disclosure of donors, it becomes a cudgel to intimidate

an ideological organization. The First Amendment

demands the state survive exacting scrutiny for using

consumer protection laws in this new way.

Here, there is little harm to New Jersey’s ability

to combat fraud. As in the NAACP line of cases, it is

plainly a pretextual demand for donors of the

government official’s ideological foes. But that is why

donor disclosure demands must be subjected to

exacting scrutiny each time a novel theory is

presented. Because New Jersey did not bring such

evidence to bear, its investigative subpoena should be

quashed.

12

II. GOVERNMENTS ARE USING OTHER

SUBPOENAS TO DEMAND DONOR LISTS

AS WELL.

Investigative subpoenas are not the only threat to

donor privacy. This Court should be aware that First

Choice’s predicament is part of a growing trend to

demand donor lists as method of lawfare—

harassment of an organization by the government to

deter actions that officials dislike. A strong

reaffirmance of AFPF and the cases upon which that

decision relies will go far in preventing harm to

organizations asserting the rights of their members

and donors.

Amicus is currently defending the privacy of its

members in California in a challenge to that state’s

retroactive and confusing taxation calculation

scheme. The case, National Taxpayers Union v.

California Franchise Tax Board, No. 24CV016118

(Superior Ct. Cal., Sacramento Cnty.),5 is in the early

stages of litigation. But right now, we are not

discussing the legal arguments of California Revenue

and Taxation Code section 25128.9. Instead, the state

Franchise Tax Board has used the discovery process

to demand the complete donor list of NTU.

California’s Attorney General’s office filed

motions to compel further special interrogatories,

compel further document production, and further

responses after the deposition of NTU President Pete

5 National Taxpayers Union Foundation (“NTUF”), amicus here,

is serving as counsel for its sister organization National

Taxpayers Union (“NTU”), a § 501(c)(4) social welfare

organization with members in California.

13

Sepp. In each motion to compel, California sought all

donors and members of NTU. See, e.g., Minute Order

on Motion to Compel Special Interrogatories at 2,

NTU v. Cal. Franchise Tax Bd., No. 24CV016118

(Superior Ct. Cal., Sacramento Cnty., May 5, 2025);

Minute Order on Motion to Compel Further

Documents at 2, NTU v. Ca. Franchise Tax Bd., No.

24CV016118 (Superior Ct. Cal., Sacramento Cnty.,

May 5, 2025); Minute Order on Motion to Compel

Further Responses RE: Pete Sepp at 1, NTU v. Ca.

Franchise Tax Bd., No. 24CV016118 (Superior Ct.

Cal., Sacramento Cnty., May 5, 2025). NTU continues

to fight such broad donor disclosure demands.

NTU has long protected the right of organizations

to stand in the shoes of their members, specifically

winning that issue before the D.C. Circuit 30 years

ago. See Nat’l Taxpayers Union, Inc. v. United States,

68 F.3d 1428, 1435 (D.C. Cir. 1995) (“Even though

NTU does not itself have standing to challenge Section

13208, it may have standing to attempt to redress the

grievances of its members who are affected by” the tax

law.). The D.C. Circuit did not demand searching

discovery of the complete donor list of NTU: the court

instead relied on the pleaded facts and attestation of

the organization to find standing. See id. at 1435

(“According to NTU, its members include at least one

estate of a testator who died between January 1 and

February 25, 1993, leaving a taxable estate subject to

the estate tax rate increase enacted in Section

13208….Certainly, such injury would be redressed if

we were to declare Section 13208 unconstitutional.

Thus, NTU meets the first prong of the Hunt

14

inquiry.”)6 (applying Hunt v. Washington State Apple

Advertising Comm’n, 432 U.S. 333, 343 (1977)).

California’s donor demand against NTU is

becoming commonplace. It has become a trend in the

law where states use various purported hooks to

demand all the supporters of an organization in order

to challenge a statute. For example, the Texas

Attorney General issued broad subpoenas, including

donor lists, in challenges to Texas’ restrictions on

access to abortion services. See Brian Hawkins, Legal

Fight Over Texas Abortion Law Spurs Donor Privacy

Concerns, PEOPLE UNITED FOR PRIVACY (Nov. 14, 2023)

https://unitedforprivacy.com/legal-fight-over-texasabortion-law-spurs-donor-privacy-concerns/; Carter

Sherman, Texas lawyer asks abortion funds for details

of every procedure since 2021, THE GUARDIAN (Sept.

28, 2023) https://www.theguardian.com/world/2023/s

ep/28/texas-lawyer-abortion-ban-procedure-patientinformation (“They also asked for information about

every person who the funds may have worked with,

including volunteers and donors, according to court

documents.”).

When applying AFPF and the other Civil Rights

cases to reject New Jersey’s donor disclosure demand

in this case, this Court should clarify that the

government needs to survive exacting scrutiny any

time it seeks the donors and members of nonprofits.

The chilling effect of threatened disclosure is real.

When faced with the threat of compelled disclosure,

prospective members decline to join, donors close their

6 NTU also satisfied the other two Hunt factors, meaning it has

associational standing to challenge in the shoes of its members.

See id.

15

pocketbooks, and advocacy groups reconsider their

speech in the future. State officials are using novel

applications of otherwise unobjectionable laws in

order to get the supporters of causes. This Court

should apply its already-existing law to ensure these

shenanigans end.

CONCLUSION

For the foregoing reasons, Amicus requests that

this Court reverse the decision below.

Respectfully submitted,

TYLER MARTINEZ

Counsel of Record

NATIONAL TAXPAYERS

UNION FOUNDATION

122 C Street N.W., #700

Washington, D.C. 20001

tmartinez@ntu.org

(703) 683-5700

August 28, 2025