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

Supreme Court briefNov 13, 2025

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NO. 24-781

IN THE

Supreme Court of the United States

FIRST CHOICE WOMEN’S RESOURCE CENTERS, INC.,

Petitioner,

MATTHEW PLATKIN, in his official capacity as

Attorney General of New Jersey,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

REPLY BRIEF FOR PETITIONER

KRISTEN K. WAGGONER ERIN M. HAWLEY

JAMES A. CAMPBELL

Counsel of Record

ERIK C. BAPTIST

JOHN J. BURSCH

NATALIE THOMPSON

LINCOLN DAVIS WILSON

GABRIELLA M. MCINTYRE CAROLINE LINDSAY

DALTON A. NICHOLS

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

44180 Riverside Pkwy

Washington, DC 20001

Lansdowne, VA 20176

(202) 393-8690

ehawley@adflegal.org

Counsel for Petitioner

TABLE OF CONTENTS

Table of Authorities .................................................. iii

Introduction ................................................................ 1

Argument.................................................................... 2

First Choice has established a ripe First

Amendment chill.................................................. 2

A. First Choice’s noncompliance risks

statutory penalties. ....................................... 3

B. The Attorney General’s coercive

subpoena

objectively

chills

associational rights. ...................................... 6

1. The donor disclosure demand is

inherently chilling. ................................. 6

2. Objective chill exists regardless of

whether the subpoena is immediately enforceable. .......................... 10

3. First Choice’s allegations and

evidence establish objective chill. ........ 12

C. The

Attorney

General’s

other

arguments fail. ............................................ 14

1. The ability to give through a

different URL does not defeat

chill. ....................................................... 14

2. The Attorney General’s cases

support standing. .................................. 15

3. The Attorney General’s

confidentiality promises do him no

good........................................................ 17

D. The disclosure demand also objectively

chills First Choice’s speech. ........................ 19

II. A credible threat of enforcement also

confers standing. ................................................ 20

Conclusion ................................................................ 25

iii

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967)............................................ 23

Americans for Prosperity Foundation v. Bonta,

594 U.S. 595 (2021).........................6–9, 17, 24–25

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963).......................................... 4, 11

Bates v. City of Little Rock,

361 U.S. 516 (1960)............................................ 10

Bennett v. Hendrix,

423 F.3d 1247 (11th Cir. 2005)............................ 9

Bennett v. Spear,

520 U.S. 154 (1997)...................................... 12, 20

Brown v. Socialist Workers ‘74 Campaign

Committee (Ohio),

459 U.S. 87 (1982)................................................ 6

Buckley v. Valeo,

424 U.S. 1 (1976).................................................. 6

Clapper v. Amnesty International USA,

568 U.S. 398 (2013)............................................ 15

Cole v. Richardson,

405 U.S. 676 (1972).............................................. 5

Curley v. Village of Suffern,

268 F.3d 65 (2d Cir. 2001) ................................... 9

Dorsett v. County of Nassau,

732 F.3d 157 (2d Cir. 2013) ................................. 9

Elrod v. Burns,

427 U.S. 347 (1976)............................................ 13

Expressions Hair Design v. Schneiderman,

581 U.S. 37 (2017)................................................ 5

Federal Bureau of Investigation v. Fikre,

601 U.S. 234 (2024)...................................... 12, 17

FTC v. Claire Furnace Co.,

274 U.S. 160 (1927)............................................ 23

Grewal v. 22Mods4all Inc.,

2021 WL 12167665 (N.J. Super. Ct. Ch. Div.

May 24, 2021)....................................................... 5

In re First National Bank,

701 F.2d 115 (10th Cir. 1983) ..................... 22, 24

Initiative & Referendum Institute v. Walker,

450 F.3d 1082 (10th Cir. 2006).......................... 10

Knick v. Township of Scott,

588 U.S. 180 (2019).................................. 2, 19–20

Laird v. Tatum,

408 U.S. 1 (1972).......................................... 15–16

Lamont v. Postmaster General,

381 U.S. 301 (1965)............................................ 10

Mahmoud v. Taylor,

606 U.S. 522 (2025)............................................ 14

McIntyre v. Ohio Elections Commission,

514 U.S. 334 (1995).............................................. 7

Media Matters for America v. Federal Trade

Commission,

2025 WL 2988966 (D.C. Cir. Oct. 23,

2025) ............................................................. 22, 24

Media Matters for America v. Paxton,

138 F.4th 563 (D.C. Cir. 2025) .......................... 22

Meese v. Keene,

481 U.S. 465 (1987)...................................... 11, 13

Mendocino Environmental Center v. Mendocino

County,

192 F.3d 1283 (9th Cir. 1999) ............................. 9

Moody v. Michigan Gaming Control Board,

847 F.3d 399 (6th Cir. 2017) ............................... 9

Moore v. Sims,

442 U.S. 415 (1979).............................................. 4

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958).................................... 7–8, 15

NAACP v. Button,

371 U.S. 415 (1963).............................................. 8

National Rifle Association of America v. Vullo,

602 U.S. 175 (2024)...................................... 11–12

Nieves v. Bartlett,

587 U.S. 391 (2019).............................................. 9

Pakdel v. City & County of San Francisco,

594 U.S. 474 (2021)............................................ 16

Reisman v. Caplin,

375 U.S. 440 (1964)............................................ 23

Riley v. National Federation of the Blind of North

Carolina, Inc.,

487 U.S. 781 (1988)............................................ 19

Seattle Pacific University v. Ferguson,

104 F.4th 50 (9th Cir. 2024) ........................ 20–21

Shelton v. Tucker,

364 U.S. 479 (1960).................................. 8, 17–18

Speech First, Inc. v. Schlissel,

939 F.3d 756 (6th Cir. 2019) ............................. 16

Steffel v. Thompson,

415 U.S. 452 (1974).............................................. 6

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014).............................. 5–6, 20–22

Thompson v. North American Stainless, LP,

562 U.S. 170 (2011)............................................ 23

Trump v. New York,

592 U.S. 125 (2020)............................................ 16

Twitter, Inc. v. Paxton,

56 F.4th 1170 (9th Cir. 2022) .............................. 6

Washington Post v. McManus,

944 F.3d 506 (4th Cir. 2019) ............................. 16

vii

White v. Lee,

227 F.3d 1214 (9th Cir. 2000) ........................... 22

Whole Woman’s Health v. Smith,

896 F.3d 362 (5th Cir. 2018) ............................. 22

Williamson County Regional Planning Commission

v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985)............................................ 19

Statutes

N.J. Stat. Ann. § 56:8-4 ...................................... 1, 3–4

N.J. Stat. Ann. § 56:8-6 .................................. 1, 3–4, 7

Other Authorities

N.J. 2025 Cyber Threat Assessment ........................ 18

INTRODUCTION

The Attorney General parts ways with the district

court and concedes that First Choice may vindicate its

constitutional claims in federal court by showing a

“reasonably objective First Amendment chill.”

Resp.Br.1. In doing so, he retreats from the statelitigation requirement he asked the Third Circuit to

adopt: that a subpoena challenge is “unripe unless

and until a court with authority to enforce it actually

compels production.” J.A.325.

Instead, the Attorney General pivots to challenge

chill, which the Third Circuit did not even mention,

Pet.App.3a–5a, and which his brief below barely

discussed, J.A.329–32. His latest rationale for

evading federal review fares no better. First Choice

faces an objective chill from the Attorney General’s

demand for its donor identities.

The Attorney General insists First Choice’s chill

is unreasonable because the subpoena “does not

require [First Choice] to do anything, and compliance

is entirely voluntary.” Resp.Br.15. The subpoena says

otherwise: it “command[s]” First Choice to comply or

risk contempt and other penalties. Pet.App.89a–90a.

And the Attorney General’s office recently told the

Third Circuit that subpoenas “possess the ‘force of

law’”; that “failure to obey is a wrongful act that can

justify … contempt”; and that various statutory

penalties may be imposed for a mere “refusal to

comply.” Appellees’ Br. at 22, Smith & Wesson v. New

Jersey, 27 F.4th 886 (3d Cir. 2022) (No. 21-2492), 2021

WL 4427167, at *22–23 (quoting N.J. Stat. Ann.

§§ 56:8-4, 56:8-6). The subpoena’s comply-or-else

demands would objectively chill a person of ordinary

firmness. One might suspect that was the point of

issuing it.

The Attorney General’s non-self-executing

argument would insulate his subpoenas—and nearly

every subpoena—from federal-court review. He

admits nearly as much: “[t]here are strong arguments

that non-self-executing subpoenas cannot ever

support ripe chill-based injuries.” Resp.Br.33. And

that theory would create the same Catch-22

preclusion trap this Court rejected in Knick v.

Township of Scott, 588 U.S. 180 (2019).

First Choice also has pre-enforcement standing.

The Attorney General does not dispute that a credible

threat of enforcement exists. Resp.Br.36–38. And

First Choice’s association and speech with its donors

are both “affected with a constitutional interest” and

“arguably proscribed” by the Attorney General’s

coercive subpoena. This Court’s cases demand no

more.

This Court should hold that a subpoena demand

for donor identities necessarily chills associational

and speech freedoms—especially where it threatens

penalties on its face—and gives rise to a ripe Article

III injury.

ARGUMENT

First Choice has established a ripe First

Amendment chill.

First Choice is entitled to litigate its First

Amendment challenge to a retaliatory subpoena in

federal court. First, the Attorney General’s fixation on

whether his subpoena is non-self-executing is

incorrect as a matter of law. Second, regardless of the

precise contours of New Jersey law, standing exists

where, as here, the associational rights of “a person of

ordinary firmness would be chilled.” Resp.Br.20

(accepting this standard). Third, the Attorney

General’s attempts to dodge chill fail. Finally, the

subpoena also objectively chills First Choice’s

protected speech.

A. First Choice’s noncompliance

statutory penalties.

risks

The Attorney General fixates on whether his

subpoena

non-self-executing.

Resp.Br.2–45

(referencing non-self-executing 39 times). He insists

that First Choice “faces no penalties,” Resp.Br.1, and

“no consequences attach” if it fails to comply with his

subpoena, id. at 22. According to the Attorney

General, his subpoena “does not require [First Choice]

to do anything”—the small nonprofit can simply

ignore it. Id. at 15. Were the Attorney General correct,

one wonders why he issues subpoenas. But he is

wrong.

On its face, the subpoena twice warns First

Choice that “[f]ailure to comply with this Subpoena

may render you liable for contempt of Court and such

other penalties as are provided by law.” Pet.App.90a.

That threat comes directly from the New Jersey code.

N.J. Stat. Ann. § 56:8-4(a) (subpoenas “have the force

of law”); § 56:8-6(a) (upon the failure to “obey any

subpoena” the Attorney General may immediately

seek contempt); § 56:8-6(c)–(d) (failure to “obey”

subpoena may result in corporate charter revocation

and other relief).

The Attorney General now insists that refusing to

comply with a subpoena is not “‘a violation’ of state

law.” Resp.Br.8. But he told the state court the

opposite in this case. In his state-enforcement action,

he alleged that First Choice violated three separate

state laws by failing to comply with his subpoena.

J.A.50, 53, 59 (alleging that First Choice violated the

CRIA, CFA, and P&O Law “by failing to produce the

documents requested in the Subpoena”).

And the Attorney General’s office has elsewhere

taken a similarly aggressive view of its subpoena

power—one rooted in statutory text. New Jersey told

the Third Circuit that penalties may be imposed

simply for a “refusal to comply” with its subpoenas.

Appellees’ Br., Smith & Wesson, 2021 WL 4427167, at

*22–23 (quoting N.J. Stat. Ann. §§ 56:8-4, 56:8-6). The

State explained that “fail[ing] to obey [subpoenas] is

a wrongful act that can justify orders ‘adjudging such

person in contempt of court’”—all before a court

enforcement order. Ibid. Indeed, New Jersey sought

such penalties there, asking that the recipient be held

“in contempt of Court for failing or refusing to obey

the Subpoena.” Compl. at 7, Grewal v. Smith &

Wesson Sales Co., Inc., No. ESX-C-25-21 (N.J. Super.

Ct. Ch. Div. Feb. 12, 2021). “It would be naive to credit

the State’s assertion that” this subpoena is “in the

nature of mere legal advice” when it “plainly serve[s]

as [an] instrument[ ] of regulation.” Bantam Books,

Inc. v. Sullivan, 372 U.S. 58, 68–69 (1963).

The Attorney General relies on a single federal

decision (Smith & Wesson) to claim New Jersey law

does not mean what it says. Resp.Br.8. But that

federal opinion is “not binding” on New Jersey courts.

Moore v. Sims, 442 U.S. 415, 428 (1979). Presumably,

that is why the Attorney General continues to issue

subpoenas threatening contempt and to argue—

contra Smith & Wesson—that refusal to comply

violates state law. J.A.50–59.

Nor is this a situation where this Court should

defer to lower federal courts’ interpretation of state

law. Cole v. Richardson, 405 U.S. 676, 683–84 (1972)

(rejecting district court interpretation that conflicted

with “[p]lain[]” meaning). The Court of Appeals did

not address this question below, and the district court

acknowledged that state courts may threaten

contempt at any point during an enforcement

proceeding. Pet.App.42a.n.22. Further, this Court

need not defer where a lower court’s construction is as

“clearly wrong” as Smith & Wesson is here.

Expressions Hair Design v. Schneiderman, 581 U.S.

37, 45–46 (2017) (citation modified). In fact, the only

authority Smith & Wesson relied on—one state trial

court decision—never says that penalties cannot be

imposed for failing to obey a subpoena. See Grewal v.

22Mods4all Inc., No. ESX-C-244-19, 2021 WL

12167665 (N.J. Super. Ct. Ch. Div. May 24, 2021). 1

Since state law authorizes punishment for the

failure to comply, a subpoena is no different from the

myriad criminal and civil statutes this Court has

found to support pre-enforcement review. Pet.Br.47–

1 The Attorney General suggests that whether his subpoena is

“self-executing” is beyond the scope of the question presented.

Resp.Br.26.n.6. Not so. This Court cannot determine whether his

subpoena harms First Choice without considering its effect. See

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 161 (2014)

(“SBA List”) (focusing on the character of “the threat of

enforcement”). That is why First Choice’s petition focused on the

nature of the subpoena’s threat, Pet.7–10, 31–32, and

highlighted that the term self-executing is misleading because

“most state laws” require a court to issue penalties, Pet.Reply.5.

52; SBA List, 573 U.S. at 162–67; Steffel v. Thompson,

415 U.S. 452, 459 (1974).

B. The Attorney General’s coercive subpoena objectively chills associational

rights.

The Attorney General’s myopic focus on the

phrase “non-self-executing” elides the relevant legal

question: whether First Choice’s chill is objective. See

Twitter, Inc. v. Paxton, 56 F.4th 1170, 1175, 1178 n.3

(9th Cir. 2022). It is. The Attorney General’s demand

for donor identities chills First Choice’s associational

rights, especially given the subpoena’s coerciveness

and the Attorney General’s demonstrated hostility

toward pregnancy centers. This chill exists regardless

of whether the subpoena is immediately enforceable.

And First Choice’s allegations and evidence confirm

that chill.

1. The donor disclosure demand is

inherently chilling.

“The Constitution protects against the compelled

disclosure of political associations and beliefs.” Brown

v. Socialist Workers ‘74 Campaign Comm. (Ohio), 459

U.S. 87, 91 (1982). Because donor disclosure demands

strike at the heart of the right to associate privately,

this Court’s cases recognize that an inherent chill

arises from such demands. In AFP, this Court held

that heightened scrutiny “is appropriate” because a

“‘deterrent effect on the exercise of First Amendment

rights’ … arises as an ‘inevitable result of the

government’s conduct in requiring disclosure’” of

donor identities. Americans for Prosperity Found. v.

Bonta, 594 U.S. 595, 607 (2021) (emphasis added)

(quoting Buckley v. Valeo, 424 U.S. 1, 65 (1976)). Such

demands necessarily chill associational rights

because they give rise to an objective “fear of exposure

of [the donors’] beliefs shown through their

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

357 U.S. 449, 463 (1958).

Here, the chill on First Choice and its donors is

both inevitable and manifestly reasonable. The

subpoena twice threatens First Choice with contempt

for “[f]ailure to comply.” Pet.App.90a. No one can fault

a small non-profit or its donors for taking an overtly

hostile Attorney General at his word. That fact alone

justifies the chill on First Choice’s associational

relationships.

New Jersey law reinforces that objective chill by

authorizing numerous penalties for the mere failure

to comply. N.J. Stat. Ann. § 56:8-6(a)-(d). Having

staked out the position that First Choice’s failure to

produce donor information violates three different

state laws, J.A.50–59, the Attorney General cannot

now claim First Choice has nothing to fear from his

supposedly “voluntary” subpoena.

The Attorney General demands specific allegations showing that First Choice donors stopped

making contributions. Resp.Br.21, 29. That approach

reduces associational rights to a mere monetary

transaction. Associational rights broadly protect

“privacy in group association,” Patterson, 357 U.S. at

462, including the right “not to disclose [one’s] true

identity” in connection with protected activity,

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341

(1995). Such “[a]nonymity is a shield from …

tyranny.” Id. at 357. That is why associational

freedoms are infringed “simply by disclosing …

associational ties” to the government. AFP, 594 U.S.

at 616 (emphasis added); Shelton v. Tucker, 364 U.S.

479, 486 (1960) (noting the “constant and heavy”

pressure on teachers from disclosing associational

ties to employers). The associational harm to First

Choice and the harm to its donors are different sides

of the same coin. When donors are chilled, First

Choice is harmed, and vice versa.

This Court has never required an organization to

prove that donors declined to give or members withdrew to show associational harm. Patterson did not

force the NAACP to offer up a member who had bowed

out of the organization. Instead, it was “apparent that

compelled disclosure” of the NAACP’s membership

was “likely to affect adversely ... their collective effort”

and “may induce members to withdraw.” Patterson,

357 U.S. at 462–63. That was enough.

Similarly, AFP allowed a facial challenge even

though “some donors might not mind—or might even

prefer—the disclosure of their identities.” AFP, 594

U.S. at 616; id. at 615 (acknowledging some donors

were “unlikely to be deterred”). Exacting scrutiny

applies to “state action which may have the effect of

curtailing the freedom to associate.” Id. at 616

(quoting Patterson, 357 U.S. at 460–61). The “risk of

a chilling effect” on association suffices “[b]ecause

First Amendment freedoms need breathing space to

survive.” Id. at 618–19 (quoting NAACP v. Button,

371 U.S. 415, 433 (1963)). If the “risk of a chilling

effect” is enough to facially invalidate government

action on the merits, it is sufficient for Article III.

AFP also forecloses the argument that First

Choice must show “that donors in fact changed their

behavior” to prove associational harm under a

retaliation framework. Cf. Resp.Br.29 (citing Curley

v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001);

Moody v. Michigan Gaming Control Bd., 847 F.3d

399, 403 (6th Cir. 2017)). To the contrary,

associational harm occurs when a donor disclosure

demand “creates an unnecessary risk of chilling,”

“may have the effect of curtailing the freedom to

associate,” or carries a “possible deterrent effect.”

AFP, 594 U.S. at 616 (citation modified). The Attorney

General’s lower-court cases are inapt. Moody was

about third-party standing, not Article III. 847 F.3d

at 402. And the quote from Curley has been rejected

as “an imprecise statement of law.” Dorsett v. County

of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (per

curiam).

The Attorney General’s heavy reliance on lowercourt retaliation cases reinforces

standing.

Resp.Br.20, 29. First Choice has pressed a retaliation

framework throughout this case. Pet.App.131a

(alleging a retaliation claim); Pet.24–25. That legal

theory “prohibits government officials from subjecting

an individual to retaliatory actions for engaging in

protected [activity].” Nieves v. Bartlett, 587 U.S. 391,

398–99 (2019) (citation modified). Most courts ask

whether retaliatory conduct would “chill a person of

ordinary firmness.” Id. at 397; Bennett v. Hendrix, 423

F.3d 1247, 1250 (11th Cir. 2005) (collecting cases);

accord Resp.Br.20. That standard protects the rights

of “an unusually determined plaintiff” who persists in

protected activity despite coercive state action.

Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d

1283, 1300 (9th Cir. 1999). And under the retaliation

framework, the entire subpoena—not just its donor

disclosure demand—violates First Choice’s rights.

Contra Resp.Br.19.n.2.

The Attorney General’s view of standing would

also compel speech. He would force organizations like

the NAACP, Americans for Prosperity, or First Choice

to detail why their donors wish to remain anonymous

as a condition of entering federal court. The

organization would have to explain, for example, why

the viewpoints it advocates are controversial. See

Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965)

(noting deterrent effect of obligation to request mail

delivery). Donors should not be forced to speak to

defend their right to silently associate. 2

2. Objective chill exists regardless of

whether the subpoena is immediately enforceable.

The Attorney General suggests that only government actions that are “regulatory, proscriptive, or

compulsory in nature” can objectively chill.

Resp.Br.22–24. But the First Amendment protects

“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). “First Amendment plaintiffs can

assert standing based on a chilling effect … even

where the plaintiff is not subject to criminal

prosecution, civil liability, regulatory requirements,

or other direct effects.” Initiative & Referendum Inst.

v. Walker, 450 F.3d 1082, 1096 (10th Cir. 2006) (en

banc) (citation modified).

Take Bantam Books. In that case, this Court held

that an informal threat from a commission without

The Attorney General claims two websites could mislead

donors. But one has no donation page (perma.cc/63S2-QNZS),

and the other showcases smiling babies. J.A.383.

power to levy sanctions satisfied Article III. The

plaintiff there—in contrast to First Choice—could

have ignored the commission. Yet this Court

instructed federal courts to “look through forms to the

substance and recognize that informal censorship

may sufficiently inhibit” the exercise of First

Amendment freedoms to confer standing. Bantam

Books, 372 U.S. at 67. Indeed, not only the “threat” of

government action, but “other means of coercion,

persuasion, and intimidation,” may warrant review.

Ibid.

Or consider Meese v. Keene. There, this Court held

that a politician had standing to challenge the

government’s identification of three films he wished

to exhibit as “political propaganda.” 481 U.S. 465,

473–74 (1987). The films were not his creation, and he

could still view and show them. Ibid. Yet the plaintiff

“demonstrated more than a ‘subjective chill’” because

his affidavits explained that labeling the films would

“harm his chances for reelection” and “adversely

affect his reputation in the community.” Ibid. This

was a “cognizable injury,” despite lacking a “direct

effect on the exercise of his First Amendment rights.”

Id. at 473. See also National Rifle Ass’n of Am. v.

Vullo, 602 U.S. 175, 198 (2024) (finding harm from

third-party threats to violate the First Amendment).

All this comports with common sense. Ordinary

“[p]eople do not lightly disregard [state’s] thinly

veiled threats to institute … proceedings against

them.” Bantam Books, 372 U.S. at 68. As the ACLU

and its co-amici explain, “[e]ven if a subpoena

targeting First Amendment activity is never enforced

in court, [it] will give its targets a very good reason to

clam up” and its “supporters a very good reason to

abandon the cause.” FIRE.Am.Br.6. A subpoena can

chill protected association “before the government

lifts a finger.” Id. at 3.

3. First Choice’s allegations and evidence establish objective chill.

The record reinforces the subpoena’s inherent

chill. At the pleading stage, this Court must “assume

the well-pleaded factual allegations in the complaint

are true” and “draw reasonable inferences in [the

plaintiff’s] favor,” Vullo, 602 U.S. at 195; see also

Federal Bureau of Investigation v. Fikre, 601 U.S. 234,

237 n.1 (2024) (noting the “general rule” for

challenges to “subject-matter jurisdiction is to take

allegations as true” (citation modified)). Further, this

Court “presum[es] that general allegations embrace

those specific facts that are necessary to support the

claim.” Bennett v. Spear, 520 U.S. 154, 168 (1997)

(allegations of overall water reduction allowed Court

to presume a reduction to plaintiffs) (citation

modified).

First Choice alleged objective chill. The complaint

details a coercive subpoena that “command[s]” First

Choice to produce donor names, phone numbers, and

addresses. Pet.App.89a–90a, 98a, 110a, 127a–29a.

The subpoena expressly threatens First Choice with

contempt and other penalties should it fail to comply.

Pet.App.90a. And the complaint details the Attorney

General’s hostility toward pregnancy centers.

Pet.App.124a–26a.

First Choice also alleged how that chill occurs.

“Donor anonymity is of paramount importance to

First Choice,” and disclosing donor information “will

likely result in a decrease in donations, as donors will

be hesitant to associate with [First Choice] out of fear

of retaliation and public exposure.” Pet.App.130a. The

subpoena may “cause individuals and entities who

associate with First Choice to reasonably fear that

they themselves will face retaliation or public

exposure and thus discourages those individuals and

entities from associating with First Choice.”

Pet.App.137a. Complying with the subpoena would

force staff to reduce “communicati[ons] with essential

supporters.” Pet.App.130a. And its “unreasonable

demands harass First Choice and discourage

individuals and entities from associating with the

Ministry.” Pet.App.139a. “This risk of loss of donors,

employees, and associates greatly jeopardizes the

Ministry’s ability to carry out its religious mission.”

Pet.App.131a.

The resulting chill is far from theoretical. Upon

hearing about the subpoena to First Choice, the

medical director of another New Jersey pregnancy

center

resigned

over

safety

concerns.

Christian.Legal.Soc’y.Am.Br.22–23. That reflects

employees’ reasonable “fear of retaliation and public

disclosure”—a fear shared by First Choice staff.

Pet.App.130a. Plus, the subpoena will cause others to

“infer” First Choice “has engaged in wrongdoing,

thereby discouraging those individuals and entities

from associating with First Choice.” Pet.App.137a.

First Choice substantiated these allegations with

unrebutted evidence. See Meese, 481 U.S. at 473–74

(affidavits sufficient to establish First Amendment

chill); Elrod v. Burns, 427 U.S. 347, 350 n.1 (1976)

(plurality opinion) (similar). First Choice’s executive

director emphasized the importance of donor

confidentiality. Pet.App.181a. She was “concerned

that if [First Choice’s] donors’ identities became

public, they may be subjected to … threats.”

Pet.App.182a. And since “[m]any donors desire for

their donations and communications with First

Choice to remain confidential,” the subpoena’s

threatened disclosure compromises First Choice’s

“ability to recruit new donors, personnel, and

affiliates,” as well as its ability to “retain current

donors, personnel, and affiliates.” Pet.App.182a–83a.

“[D]ivulging [their] information would harm …

current relationships with these individuals and

affiliates” and limit speech and association with new

supporters. Pet.App.182a–84a.

In addition, First Choice donors testified that the

subpoena was an imminent threat to their association

with First Choice. Pet.App.177a–78a. They “would

have been less likely to donate to First Choice if [they]

had known information about the donation might be

disclosed to an official hostile to pro-life

organizations.” Pet.App.177a.

On this record, the Court does not “need to ‘wait

and see’” whether donations dry up before evaluating

the First Amendment claims. Mahmoud v. Taylor,

606 U.S. 522, 560 (2025).

C. The Attorney General’s other arguments

fail.

1. The ability to give through a different

URL does not defeat chill.

The Attorney General tries to refute chill by

suggesting donors should just give through a different

URL. Resp.Br.27–30. That fails for two reasons.

First, the Attorney General’s focus on prospective

donor alternatives ignores that he demands disclosure of past gifts. That demand objectively chills

associational privacy of past donors and portends a

decrease in future giving. Donors are much less likely

to “affiliate with and support pro-life organizations,

even privately,” if they know that the organization is

subject to investigations by “openly hostile law

enforcement officers.” Pet.App.177a. “[D]isclosing

their identity to state officials ‘with hostile views’

could threaten their safety” and “chill their giving.”

Anonymous.Donors.Am.Br.11.

Second, the Attorney General’s just-use-anotherURL argument assumes that donors are

sophisticated, steel-spined supporters rather than

ordinary people. A reasonable person would be

objectively chilled from associating with an

organization that is subject to a disclosure demand by

a hostile state actor. Patterson, 357 U.S. at 462. It is

highly improbable that reasonable donors would be

comfortable giving through alternative avenues,

especially when the Attorney General acknowledges

that he may target those channels later.

Resp.Br.24.n.5; see Supp.Pet.App.2a (last-minute

narrowing of his subpoena “at this time”). The threat

still looms.

2. The Attorney General’s cases support

standing.

The precedent cited by the Attorney General

confirms that First Choice has suffered an Article III

injury. To start, the Attorney General’s reliance on

Clapper v. Amnesty International USA, 568 U.S. 398

(2013), and Laird v. Tatum, 408 U.S. 1 (1972), is

puzzling. In Clapper, the government had not acted

against the plaintiffs. And the plaintiffs in Laird

alleged a First Amendment chill caused “not by any

specific action of the [government] against them,” but

“by the mere existence, without more,” of a

government program they disliked. 408 U.S. at 3, 10

(citation modified; emphasis added).

Here, there is more. Much more. The Attorney

General has trained his sights on First Choice,

targeting it with a subpoena “command[ing]” it to

produce donor contact information on pain of

contempt. Pet.App.89a–90a. His disclosure demand

backed by a sweeping investigatory power reasonably

chills First Amendment activity. See Washington Post

v. McManus, 944 F.3d 506, 519 (4th Cir. 2019). And

he has aggressively pursued that disclosure,

including through a motion for sanctions.

The Attorney General’s reliance on Speech First,

Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019), is even

more baffling. The court there held that an “implicit

threat of punishment” was enough to “quell speech.”

Id. at 765. This was true even though the Bias

Response Team’s invitation was “voluntary,” and

even though it “lack[ed] any formal disciplinary

power.” Ibid. There is nothing “implicit” about the

Attorney General’s threats here.

Trump v. New York, 592 U.S. 125 (2020) (per

curiam), does not help the Attorney General either. In

that case, which did not involve a First Amendment

chill, implementation of the challenged policy was

unknown. Id. at 133–34. Here, the Attorney General

explicitly directed his subpoena to First Choice and

steadfastly pursued its enforcement. First Choice and

its donors are objectively chilled.

The Attorney General reads Pakdel v. City &

County of San Francisco, 594 U.S. 474 (2021)—

another case not involving the First Amendment—to

say federal review is unavailable anytime the

government might modify its decision. Resp.Br.25.

Such a rule would allow the government to chill vast

amounts of protected speech and association on the

pretext that its demands could change.

Similarly, the Attorney General is wrong that an

objective chill evaporates when the parties might

“negotiate.” Resp.Br.24. Parties can negotiate in every

case, and being forced to the negotiating table by an

unconstitutional demand is itself harmful. While the

Attorney General posits that his late-breaking

narrowing of the subpoena resulted from the meetand-confer process, that narrowing did not occur until

the Third Circuit granted expedited review. The

Attorney General’s position would give the

government the whip hand in any negotiation.

That is why this Court has imposed a “formidable

standard” on defendants who change challenged

conduct to avoid review. Fikre, 601 U.S. at 243. The

Attorney General claims that the mere possibility he

might change positions precludes this Court’s review.

But this Court’s “constitutional authority cannot be so

readily manipulated.” Id. at 241.

3. The Attorney General’s confidentiality promises do him no good.

The Attorney General argues that donors cannot

be reasonably chilled because his office will protect

their information. Resp.Br.31–32. That pinky

promise does not cut it: “assurances of confidentiality

may reduce the burden of disclosure to the State,” but

“they do not eliminate it.” AFP, 594 U.S. at 616.

Disclosure requirements are chilling even where

made only to the government. Shelton, 364 U.S. at

485–86.

The Attorney General insists that First Choice’s

donors need not fear state harassment. But he

assembled a “Strike Force” targeting pregnancy

centers, Pet.Br.7, warned New Jerseyans to “beware”

of them, ibid., “partner[ed]” with Planned Parenthood

to issue a “consumer alert” against them,

Pet.App.191a–96a, and threatened them with

“numerous actions,” J.A.377—aside from his subpoenas. It is reasonable for donors to feel “pressure …

to avoid any ties which might displease” the Attorney

General. Shelton, 364 U.S. at 486.

The Attorney General next touts the supposed

protections of a “future protective order.” Resp.Br.30

(emphasis added). Yet no such order exists. And even

his most generous proposal would permit disclosure

to state and local government employees. See, e.g.,

Proposed Stipulated Protective Order at 2, Platkin v.

First Choice Women’s Resource Centers, Inc. (No.

ESX-C-22-24).

Regardless, First Choice’s “fear of public

disclosure is neither theoretical nor groundless.”

Shelton, 364 U.S. at 486. The State’s 2025 Cybersecurity Threat Assessment recently warned that

New Jersey “faces an escalating wave of sophisticated

cyberattacks that threaten the state’s essential

operations and security.” N.J. 2025 Cyber Threat

Assessment, perma.cc/4G8B-TFT3. In 2024 alone,

state agencies reported 149 cybersecurity incidents to

the New Jersey Office of Homeland Security and

Preparedness. Ibid. If the Attorney General gets his

way, sensitive donor information will be available not

just on First Choice’s private system, but also on New

Jersey’s public ones. That exposes First Choice’s

donors to at least twice the risk.

D. The disclosure demand also objectively

chills First Choice’s speech.

The subpoena chills not only the association but

also the speech of First Choice and its donors by

impairing solicitation and donor gifts alike. The

Attorney

General

concedes

that

disclosure

requirements have the “‘predictable result’ of

encouraging [targets] to ‘refrain from engaging in

[charitable] solicitations.’” Resp.Br.28.n.8 (citing Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S.

781, 799–800 (1988)). And for donors, “the predictable

result is that [they] will be encouraged to ... refrain

from engaging in [donations] that result in an

unfavorable disclosure.” Riley, 487 U.S. at 800;

Pet.App.177a, 182a–84a. Those principles control.

The Attorney General’s only answer to Riley is to

“predict[]” that donors will “change the URL by which

[they] donate[ ],” not that they will “stop donating.”

Resp.Br.28.n.8. That blinks reality. The Attorney

General’s aggressive pursuit of donor information

“necessarily chill[s] speech.” Riley, 487 U.S. at 794.

“Whether one views [it] as a restriction of [First

Choice’s] ability to speak, or a restriction of the

[donors’] ability to speak, the restriction is

undoubtedly one on speech, and cannot be

countenanced here.” Ibid. (citation modified).

At day’s end, the Attorney General’s proposed

rule for non-self-executing subpoenas would foreclose

federal review just as effectively as did Williamson

County. The state-court litigation necessary to ripen

a constitutional claim would “simultaneously bar[]

that claim, preventing the federal court from ever

considering it.” Knick, 588 U.S. at 188. The target of

a state subpoena thus “finds himself in a Catch-22.”

Id. at 184. “He 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.”

Id. at 184–85. Where, as here, a subpoena threatens

contempt and was issued by an overtly hostile state

official, Article III does not demand such a result.

II. A credible threat of enforcement also

confers standing.

The Attorney General does not dispute that First

Choice faces a credible threat of enforcement. Nor

could he. He has already taken aggressive action to

enforce his subpoena. Nor does the Attorney General

dispute that the First Amendment protects First

Choice’s speech and associational rights or that those

rights are at least “arguably” burdened by the

subpoena. That is all this Court’s cases require. See

SBA List, 573 U.S. at 162.

Instead, he contends that “even a credible threat

that the State will try to enforce the subpoena is

insufficient to support Article III standing.”

Resp.Br.36. This is just another variant of his claim

that a non-self-executing subpoena generally cannot

“establish a cognizable Article III injury.” Resp.Br.34.

“[I]n reality [a subpoena] has a powerful coercive

effect” on the recipient. Bennett, 520 U.S. at 169. At

minimum, it “arguably” burdens First Amendment

freedoms. See Seattle Pac. Univ. v. Ferguson, 104

F.4th 50, 60 (9th Cir. 2024) (finding pre-enforcement

standing based on a demand letter and litigation hold

request).

The Attorney General’s position would mean that

litigants “have virtually no opportunity to seek

federal review of [subpoenas] infringing on

constitutional rights.” Id. at 64. A state-court

enforcement order will almost certainly resolve

constitutional defenses and thus res judicata will bar

the federal court door. Pet.Br.20–23. And even if the

state court does not decide the constitutional issues,

the Attorney General will argue Younger

abstention—as he did in this very case. See

Pet.App.26a–29a. Worse yet, the state court in this

case has already issued an order finding the subpoena

enforceable; the Attorney General thus demands

more than a state-court enforcement order to satisfy

Article III. Resp.Br.34–36. That state-courtenforcement-plus test would leave a vanishingly

small window for federal review.

The notion that non-self-executing laws are

immune from pre-enforcement challenge is

incompatible with SBA List, which recognized federal

jurisdiction in exactly those circumstances. 573 U.S.

at 153, 161. There, standing was based on a credible

threat of administrative proceedings, even though the

only available penalty was a reprimand, and the

possibility of a subsequent referral for prosecution

was exceedingly remote. Pet.Br.49–50. If that was

enough, the Attorney General’s overt command to

respond or face sanctions surely is too.

The Attorney General argues that subpoenas are

“different in kind” from state laws that threaten to

violate First Amendment rights. Resp.Br.25. He’s

right: they’re worse. First Choice was singled out—by

the State’s highest law enforcement officer—for a

disclosure demand backed by threat of punishment.

That is markedly more coercive and chilling than a

generally applicable law.

The Attorney General also maintains that

subpoenas cannot inflict an Article III injury outside

the First Amendment context. Resp.Br.33–34. This

Court need not resolve that question because this is a

First Amendment case. In fact, the Attorney General

concedes that where a subpoena reasonably chills

First Amendment exercise, that chill is an injury-infact. Resp.Br.1, 15, 17; see also SBA List, 573 U.S. at

165–66; Media Matters for Am. v. Paxton, 138 F.4th

563, 582–83 (D.C. Cir. 2025); Whole Woman’s Health

v. Smith, 896 F.3d 362, 373 (5th Cir. 2018); In re First

Nat’l Bank, 701 F.2d 115, 118 (10th Cir. 1983); Media

Matters for Am. v. Federal Trade Comm’n, 2025 WL

2988966, at *4 (D.C. Cir. Oct. 23, 2025) (per curiam);

cf. White v. Lee, 227 F.3d 1214, 1228–29 (9th Cir.

2000).

In addition to chill, the subpoena gives rise to

several other imminent injuries. First, the subpoena

creates “a substantial risk that [First Choice] will

bear the burden of litigating the enforcement

proceeding.” U.S.Am.Br.13; SBA List, 573 U.S. at

165–66 (“time and resources” are an injury). Second,

First Choice faces a substantial risk that a state court

will issue an order compelling disclosure. SBA List,

573 U.S. at 161–66. Third, First Choice “faces a

substantial risk that … the state court will issue an

adverse order” imposing contempt or other penalties.

U.S.Am.Br.13–14; SBA List, 573 U.S. at 165–66

(“prospect[ive] issuance” of an adverse order is an

injury). 3

3 It is immaterial that a “litigation expense … does not constitute

irreparable injury” for purposes of equitable relief. Contra

Resp.Br.41. It satisfies Article III. SBA List, 573 U.S. at 165–66.

The Attorney General errs by equating

administrative finality with Article III injury-in-fact.

Resp.Br.40. True, a federal subpoena recipient not

subject to a “final agency action” has no cause of

action under the APA. But Article III standing is

distinct

from

cause-of-action

requirements.

Thompson v. North Am. Stainless, LP, 562 U.S. 170,

177 (2011) (refusing to equate “person aggrieved”

with Article III standing). For the same reasons, the

Court should reject the Attorney General’s strained

analogy to non-final agency rulemaking. Resp.Br.26.

Unlike proposed rulemaking, subpoenas are

authorized by statute and legally effective even before

they are enforced. The Attorney General did not issue

a “proposed” subpoena—he commanded First Choice

to respond.

The Attorney General also confuses Article III

jurisdiction with the questionable judge-made

doctrine of prudential ripeness, which he does not

even invoke. Most notably, he cites Abbott

Laboratories v. Gardner, 387 U.S. 136 (1967), as an

Article III case, Resp.Br.18, 35, 36, 39, but Abbott

Labs is a prudential ripeness case.

In the same vein, the Attorney General cites two

other decisions involving federal agencies—Reisman

v. Caplin, 375 U.S. 440 (1964), and FTC v. Claire

Furnace Co., 274 U.S. 160 (1927). Those cases do not

apply for three reasons. First, neither case involved

First Amendment harm. Reisman, 375 U.S. at 441–42

(contesting demand for work product); Claire

Furnace, 274 U.S. at 165–66 (contesting business

records demand). Second, they are decisions about

equity jurisprudence, not Article III standing or

ripeness. Pet.Br.25–26; U.S.Am.Br.23–25. Third,

federal subpoena recipients are entitled to federal

court review after the administrative process, while

the Attorney General’s approach all but ensures that

state subpoena recipients will never have their day in

federal court. Pet.Br.26.

Administrative law doctrine does not supersede

either Article III or the First Amendment. That is why

federal courts have quashed subpoenas for violating

the First Amendment—before the administrative

process has been exhausted—when equity demands

judicial intervention. E.g., Media Matters, 2025 WL

2988966.

Finally, the Attorney General says that allowing

federal review of challenges to subpoenas “would be

enormously disruptive.” Resp.Br.42. But First

Amendment review has been available for decades,

e.g., In re First Nat’l Bank, 701 F.2d at 118, and the

sky has not fallen. On the flip side, creating a

subpoena exception to ordinary Article III principles

“would empower” government officials “to issue

sweeping demands that inflict concrete and ‘ongoing

injuries’ that suppress [First Amendment rights] ...

while simultaneously closing the courthouse doors to

relief.” Media Matters, 2025 WL 2988966, at *4.

Targets of state donor disclosure demands

deserve a federal forum, and First Amendment

freedoms need breathing space to survive. Here, the

Attorney General targeted an ideological opponent

with a donor disclosure demand. “The gravity of the

privacy concerns” caused by such subpoenas is

“underscored by the filings of [dozens] of

organizations as amici curiae in support of the

petitioners.” AFP, 594 U.S. at 617. They span the

ideological spectrum, from the ACLU to the Chamber

of Commerce, and reporters to big tech. “The

deterrent effect feared by these organizations is real

and pervasive.” Ibid. And that objective chill entitles

First Choice to its day in federal court.

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,