Supreme Court was right to protect donor privacy, and NC was ready

Last September, when the John Locke Foundation filed an amicus brief in the case of First Choice Women’s Resource Centers, I wrote that New Jersey’s attorney general was not really trying to enforce a consumer protection law. He was sending a message: Support a cause the government dislikes, and you could pay the price. Last week, a unanimous Supreme Court held that organizations do not have to wait for a state court to force compliance before they can fight back in federal court.

The decision in  First Choice Women’s Resource Centers, Inc. v. Davenport  is correct, important, and timely. It forecloses a tactic that government officials across the political spectrum have used to harass and silence organizations they oppose — and North Carolina, having just won this exact battle in our own legislature, understands better than most what is at stake.

What the Attorney General Did

First Choice has served pregnant women in New Jersey since 1985. In 2022, then-Attorney General Matthew Platkin created a “Reproductive Rights Strike Force” that accused groups like First Choice of spreading false information about abortion, despite receiving zero public complaints about the organization. He then served it with a sweeping subpoena demanding the names, addresses, phone numbers, and employers of virtually every donor who had given by any means other than one state-approved webpage. Nearly 5,000 contributions were at issue. Two federal courts dismissed the challenge, holding the subpoena was “non-self-executing” and caused no cognizable injury yet. The Supreme Court reversed, unanimously, in an opinion by Justice Gorsuch.

Why the Court Got It Right

Donor privacy is not a new idea. In NAACP v. Alabama (1958), the Supreme Court held that compelled disclosure can suppress a protected association as effectively as an outright ban — and has reaffirmed that principle ever since. Justice Gorsuch applied it with clarity: The harm does not begin when a court orders compliance. It begins the moment the demand is issued.

As he put it, “the value of a sword of Damocles is that it hangs — not that it drops.” Anonymous donors attested they would have been less likely to give had they known their information might reach an attorney general who publicly called pro-life groups “extremists.” That is a concrete, ongoing First Amendment injury. The court also rejected the argument that leaving one donation channel untouched cured the harm: A government that takes three limbs but spares the last imposes an injury all the same.

No Matter Where You Stand on Abortion

This case arose because a pro-life organization was targeted, but the principle has nothing to do with abortion. Briefs supporting First Choice came from the ACLU, the Church of Jesus Christ of Latter-day Saints, the National Taxpayers Union Foundation, and dozens of others across the ideological spectrum. Officials of both parties have used donor subpoenas precisely because the chilling effect occurs even when a subpoena is never enforced. The First Choice decision forecloses that tactic regardless of which party’s attorney general holds the subpoena.

North Carolina Was Ready

North Carolina did not wait for the Supreme Court to act. Our General Assembly passed the Personal Privacy Protection Act (SB 416), shielding nonprofit donors from government collection and disclosure of their personal information. Gov. Josh Stein vetoed it, claiming it would enable “dark money.” That was nonsense — this was never about dark money, but about preventing government witch hunts against citizens who support disfavored causes. The General Assembly correctly overrode that veto, and yesterday’s decision validates the constitutional foundation on which our law rests.

John Locke Foundation supporters understand this personally. Our donors believe in individual liberty and limited government — views not universally popular in every corridor of state power. Under the reasoning the court rejected, a determined attorney general could have subpoenaed those records and left our supporters in fearful uncertainty for months while federal courts stood aside. That is no longer the law.

The NAACP stood in First Choice’s shoes in 1958. The Americans for Prosperity Foundation stood there in 2021. A pro-life pregnancy center in New Jersey stands there today. Nine justices agreed: the government cannot use donor subpoenas to suppress organizations it dislikes while federal courts stand by. Last week, the Supreme Court said so in terms no attorney general — in New Jersey, North Carolina, or anywhere else — can misread.

That is good news for First Choice. It is good news for every organization that has ever stood in government’s crosshairs for holding the “wrong” views. And it is good news for every North Carolinian who has ever written a check to a cause worth fighting for.

“Supreme Court was right to protect donor privacy, and NC was ready” was originally published on www.carolinajournal.com.