When a government agency searches without a reason it’s called “fishing.” When the attorney general of New Jersey issued a subpoena demanding the names, addresses and phone numbers of the donors to a pregnancy center, it wasn’t just fishing, it was searching for a white whale.

The Fourth Amendment protects us from unreasonable searches. However, that does not stop some law enforcement agencies from abusing their subpoena authority to conduct unreasonable searches. That appears to be what happened to First Choice Women’s Resource Center.

Subpoena vs Warrant
Before we get into the case, we should define the difference between subpoenas and warrants.

The criteria for a warrant is defined in the Fourth Amendment.

[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
— U.S. Constitution, Amendment IV

According to the Free Legal Dictionary, a subpoena is:

A formal document that orders a named individual to appear before a duly authorized body at a fixed time to give testimony.
— Subpoena, The Free Legal Dictionary

This distinction is important, because according to The Free Legal Dictionary, a “duly authorized body” can order an individual to appear without any probable cause. There’s no need to provide a reasonable suspicion that the person has committed, is committing or is about to commit a crime.

No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
— Union Pac. R. Co. v. Botsford, 141 U. S. 250, 251 (1891)

So where is the clear and unquestionable authority of law for a “duly authorized body” to search without a warrant? Where is the authorization for said body to seize, by demanding attendance, with the authority of a warrant? This is a cornerstone of the protection of our rights.

Erin M. Hawley, Esq. on behalf of the Petitioner, to the U.S. Supreme Court:
This Court has long safeguarded the right of association by protecting the membership and donor lists of nonprofit organizations like First Choice. Yet the attorney general of New Jersey issued a sweeping subpoena commanding on pain of contempt that First Choice produce donor names, addresses and phone numbers so his office could contact and question them. That violates the right of association.
— First Choice Women’s Resource Centers v. New Jersey – Oral Arguments

Ms. Hawley’s opening argument may be true; if the State of New Jersey can simply demand the information of people who associate with a group, then it violates their right of association. However, the First Amendment does not protect people from such violations by a state, only those done by laws made by Congress.

The Constitution of the State of New Jersey does protect its citizens.

The people have the right freely to assemble together,
— Constitution of New Jersey, Article I, Section 18

Not only is this rather important detail missed by both the attorneys and justices of the Supreme Court, but lower courts had some interesting views as well, holding that First Choice must litigate its First Amendment claims in state court. There is a serious constitutional issue with the claims of the lower court. State courts do not have jurisdiction over First Amendment issues, only federal ones.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
— U.S. Constitution, Article III, Section 2, Clause 1

So how can a state court litigate a case that the Constitution clearly states is under the judicial power of the United States, i.e., federal courts?

First Choice’s associational interests were harmed the moment it received a coercive subpoena demanding donor names on pain of contempt.

The attorney general does not dispute that First Choice faces a credible threat of enforcement, and there’s no question that First Choice’s First Amendment interests are arguably burdened by the subpoena. This Court’s cases require no more. The attorney general’s proposed subpoena exception from ordinary Article III rules would mean that the NAACP could have received a hostile subpoena from an attorney general and federal court review would not have been available until a state court ordered production. But then Younger abstention and res judicata would almost certainly slam the federal courthouse doors shut.
— First Choice Women’s Resource Centers v. New Jersey – Oral Arguments

First Choice has a simple ask.

This Court should reverse and hold that this subpoena violates the First Amendment and satisfies Article III.
— First Choice Women’s Resource Centers v. New Jersey – Oral Arguments

I agree that the lower court decision should be reversed and that the case belongs in an Article III court. But I disagree that the subpoena violates the First Amendment, because what it does is violate the Fourth Amendment.

The attorney general of New Jersey argued their case.

Sundeep Iyer, Esq. on behalf of the Respondent:
Petitioner’s factual allegations do not show that the issuance of this subpoena objectively chilled Petitioner’s First Amendment rights.
— First Choice Women’s Resource Centers v. New Jersey – Oral Arguments

Funny that Mr. Iyer claims that a subpoena threatening contempt if First Choice doesn’t comply does not chill their rights. I agree it doesn’t chill their First Amendment rights, but it does chill their liberty to retain donors when they find out their personal identifying information has been collected by the State of New Jersey simply for donating to a particular nonprofit organization.

New Jersey state law establishes that subpoenas do not require anyone to produce documents, and a party faces no penalties for non-production. Any legal duty to produce documents and, in this case, any disclosure of donor identities is instead wholly contingent on a future state court order requiring production.
— First Choice Women’s Resource Centers v. New Jersey – Oral Arguments

Interesting. If the laws of the State of New Jersey do not require complying with the subpoena, you would think the attorney general’s office would know that. Yet still, they included this language in the subpoena.

Failure to comply with this Subpoena may render you liable for contempt of Court and such other penalties as are provided by law. . . . You have an obligation to retain, and continue to maintain the requested Documents.
— First Choice Women’s Resource Centers v. New Jersey – Petition for a writ of certiorari

Yes, the subpoena says First Choice “may” be liable for contempt of Court, but the threat is there: Comply or else. Not to mention the legal costs to First Choice to attempt to quash the subpoena.

For two years, First Choice has had to defend themselves in court against what I will later show to be an unreasonable, and therefore unconstitutional, search of their records.

. . . Article III courts are the only ones with jurisdiction.

State and local governments issue tens of thousands of subpoenas every year. But the federal government’s theory would risk turning many of these ordinary subpoena disputes into federal cases even without a First Amendment claim. That would be a remarkable break from history and tradition.
— First Choice Women’s Resource Centers v. New Jersey – Oral Arguments

Perhaps the tens of thousands of subpoenas issued every year by state and local governments, not to mention by federal agencies, should be reviewed. Where do these governments get the legal authority to compel attendance, and in some cases the production of evidence, without a warrant? That is a violation of the Fourth Amendment’s Reasonableness Clause. It may even be a violation of the Fifth Amendment’s Self Witness clause.

I believe the court should be the first to consider whether or not subpoenas, specifically the language to compel attendance, violate the Fourth Amendment.

Command or Request
During questioning, several interesting arguments were looked at. Let’s start with whether or not a subpoena is a command or merely a request.

Justice Thomas: Your argument seems to be based on the mere reception of the subpoena, so what did that cause you to do?

Ms. Hawley: So the subpoena commands First Choice to do several things. It commands it to produce 28 different categories of documents, including every solicitation e-mail and text message it sent to its donors. It commands it produce donor names, addresses, phone numbers, as well as places of employment. It imposes a litigation hold, Your Honor. And it also chilled First Choice and its donors’ First Amendment rights.
— First Choice Women’s Resource Centers v. New Jersey – Oral Arguments

As I pointed out, this subpoena cannot violate the First Amendment since it is not based on a law made by Congress. However, by compelling that First Choice do something, the attorney general deprived them of the liberty to privately communicate with their donors. That violates the Fourteenth Amendment’s due process clause.

nor shall any State deprive any person of life, liberty, or property, without due process of law;
— U.S. Constitution, Amendment XIV

Remember, under the Fourth Amendment, any search must be reasonable. While there are circumstances where a search can be reasonable without a warrant, there has to be some basis for reasonableness.

Justice Thomas: Were there complaints against you that stimulated the subpoena?

Ms. Hawley: No, Your Honor. The attorney general has never identified a single complaint against First Choice.
— First Choice Women’s Resource Centers v. New Jersey – Oral Arguments

If there is no complaint, what is the reasonable articulable suspicion that a crime has been committed?

But is a subpoena nothing more than a request?

Justice Thomas: Did you view this as a request?

Ms. Hawley: Absolutely not, Your Honor. First Choice immediately convened an emergency board meeting to discuss the subpoena. The very Latin term for subpoena means under penalty. If you look at the face of the subpoena, it twice commands First Choice to produce on pain of contempt, and it twice threatens that the failure to comply with the subpoena, not a later state court order but with the subpoena, shall render First Choice liable for contempt and other penalties at law. Some of those other penalties at law are business dissolution. That is a death knell for nonprofits like First Choice.
— First Choice Women’s Resource Centers v. New Jersey – Oral Arguments

Having received a federal subpoena, I can tell you there is nothing about that process that leads you to believe it is a request. Now that I know that subpoena is Latin for “under penalty” I’m sure it’s not a request.

Does the idea that a document literally titled “under penalty” does not impose an obligation to produce documents, under some penalty, sound reasonable to you?

The State of New Jersey claims that a subpoena is non-self-executing, meaning someone cannot be held for violating it. But New Jersey law says a subpoena from the attorney general’s office has the force of law. So which is it?

The AG didn’t send a letter requesting documents, they sent a subpoena. A subpoena that stated:

You are hereby commanded to produce to the New Jersey Division of Consumer Affairs, Office of Consumer Protection (“Division”) through Chanel Van Dyke, Deputy Attorney General, at 124 Halsey Street, 5th Floor, Newark, New Jersey 07101, on or before December 15, 2023, at 10:00 a.m., the following:
— First Choice Women’s Resource Centers v. New Jersey – Petition for a writ of certiorari

That sounds like a demand to produce documentation to be searched without a warrant, exigent circumstances, or even a claim of reasonable cause. That, ladies and gentlemen, is an obvious and blatant violation of the Fourth Amendment.

First or Fourth Amendment?
As I’ve already pointed out, this cannot be a First Amendment violation, but rather a Fourth. Justice Barrett opened that door in her questioning, asking, “Are we only talking about First Amendment cases? Are we talking about other constitutional challenges?”

Conclusion
I hope you see why I decided to dive into this case. It’s bad enough that the attorneys brought such a poorly formed case, but the fact no one pointed out the blatant Fourth Amendment violation is truly disturbing.

Having received a subpoena, I know the impact of the words compelling you to attend or provide evidence. In my case, it was a command to testify in a case; in First Choice’s case it was to provide confidential information about their donors. Yes, this would certainly give donors pause, chilling their association with First Choice, but to me the greater harm is the loss of protection, for both First Choice and all Americans, of our right to be secure from unreasonable searches and seizures.

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Photo, top, courtesy of Kindel Media / Pexels