SCOTUS Ruling in Nonprofit Challenge Could Impact AGs' Subpoena Powers

First Choice Women's Resource Centers v. Platkin began in December 2023 when the faith-based nonprofit challenged a November 2023 subpoena from New Jersey AG Matthew Platkin (D) seeking the names of almost 5,000 donors to the center. In addition, it requested records about operations and other information. First Choice, which operates pregnancy centers in New Jersey, argued the subpoena violated its First Amendment rights and impeded on a nonprofit’s donors’ privacy.

The state’s argument is that it sought information through the subpoena as part of its investigation of statements appearing on First Choice’s public-facing sites and elsewhere, which it suspected were inconsistent and misleading the public. However, the subpoena lacked specific complaints or evidence of violations. Based on findings gathered via the subpoena, the state AG could move ahead with a consumer protection prosecution against the health care provider or drop the action.

The Supreme Court is set to hear oral argument on Dec. 2.

Aside from what a ruling could mean for AGs’ subpoena power, a key legal question is whether compelled disclosure of donor identities and other internal documents violates free speech, according to a Nov. 7 blog post from DLA Piper.

Another question involves jurisdiction: Should advocacy groups’ challenges of state subpoenas be heard in federal courts? New Jersey is arguing that although First Choice has rights and could bring a federal case, this issue “can be handled at the state court level,” said Susan Duarte, a privacy lawyer at Marashlian & Donahue. However, should SCOTUS decide that a federal court is a suitable venue, it’s likely that “more and more” people would add this claim to litigation “to try not to have to provide documents” to state AGs.

Attorneys General Weigh In

Understandably, state AGs are “particularly concerned” about First Choice, Duarte said. On Oct. 21, a coalition of 20 attorneys general, all Democrats, led by Massachusetts AG Andrea Joy Campbell (D) and Washington AG Nick Brown (D), filed an amicus brief asking the high court to affirm an appeals court and rule in favor of the state.

“State attorneys general rely on subpoenas or CIDs as investigatory tools to obtain relevant information that will inform an investigation,” the brief said, citing the Florida AG’s subpoena against Roblox seeking information that bad actors harmed children on the platform as an example (see 2510200041).

Moreover, the states are worried that bad actors could shield themselves from an investigatory subpoena should the Supreme Court rule for First Choice. This would encourage “recipients of such subpoenas to file preemptive challenges in federal court, thereby frustrating all States’ legitimate investigations before those investigations even get off the ground,” the brief added.

In a release, Washington AG Brown said, “This case threatens to make it harder for our office to protect Washington consumers from harm.” SCOTUS should halt “this attempted end-run around the authority of attorneys general to enforce the law.”

California AG Rob Bonta (D) added, “Investigative subpoenas are one of the best tools that attorneys general have to make sure that businesses and people are following the law.”

While the AGs who signed the letter are Democrats, Duarte said preserving “disclosure of … information” is a bipartisan cause.

Unique Aspects

For Sara Geoghegan, senior counsel at the Electronic Privacy Information Center (EPIC), the issue is central to what AGs do. They “have investigative authorities” that include issuing subpoenas or sending letters to companies, filing “lawsuits on behalf of consumers in their states and D.C.” It’s their job, when warranted, “to actually ask companies to … pop open the hood and look inside.”

This power is central to AGs’ ability to protect consumers when organizations and/or “companies do harmful things” in front of and beyond the public’s eye, she added. It’s especially important now for state AGs to protect citizens, particularly marginalized and vulnerable people, when federal regulators “are not.” Geoghegan said, “There's a federal attack on marginalized people at the moment, and AGs are the ones who have the tools to step up and protect them.”

Duarte agreed that CIDs are “used all the time.” The lawyer added that “it's usually just a friendly exchange of information.”

Geoghegan noted that a side benefit of subpoenas is that the act of requesting information “might encourage compliance” from companies. More important, though, subpoenas are critical because they’re how “lawsuits can start,” she added. “You have to gather information and documents and facts to actually start a legal case … The information-gathering stage is what the subpoenas allow.”

Additionally, Geoghegan emphasized that the material subpoenas help uncover is protected. The “confidential pieces of information [unearthed] go to the AG's office,” noted the EPIC official, adding that receiving a subpoena doesn’t mean a company will be hit with a privacy violation.

Still, she and Duarte acknowledged it’s never fun to receive a subpoena, with the privacy lawyer noting "it's better to be cooperative” when a subpoena arrives. Throwing up hurdles “frustrates the process” and could make it appear the client has something to hide.

Duarte said First Choice is "interesting" because the state was investigating "a consumer protection violation." Yet First Choice is arguing its challenge of the subpoena is protecting consumers too, by keeping donors’ names private. Duarte said that’s “understandable” in “today’s political climate.”

As such, it’s “a unicorn of a case,” Duarte said. “You don't really ... see these types of things.”

Geoghegan added that First Choice also said it’s protecting the privacy of patients concerning their health care and reproductive choices, “so it's an interesting argument for them to be making.”

Regardless of the outcome in First Choice, attorneys general will use subpoenas "to protect their constituents, even if parts of a subpoena might be considered outside of the scope here,” Geoghegan said. The First Amendment doesn't give blanket protection to “any company from being investigated by an attorney general.”