CONSTITUTIONAL INTERPRETATIONS

According to the United States Supreme Court, charitable organizations have a Constitutional right, under the First and Fourteenth Amendments, to keep the identities of their donors secret from state investigators, except to the extent that the state can show that the donor information is necessary for law enforcement purposes.[1] Now pending before the Court is the related issue of whether a targeted charity may challenge a state’s subpoena for donor identities in a civil rights lawsuit filed in federal court, before any law enforcement justification for the subpoena has been publicly identified, alleged, or proven. See the Court’s docket in the case of First Choice Women’s Resource v. Davenport, Docket No. 24-781.

The issue in the First Choice Case is one of federal court jurisdiction under Article III of the United States Constitution.[2]  That Article has been appropriately construed over the years as imposing a requirement that a federal court plaintiff allege, and then show some unlawful injury to himself, caused by the defendant, in order to file and maintain a federal court lawsuit. Under the Court’s longstanding donor privacy doctrine, that jurisdictional requirement has already been easily met in the First Choice Case, because First Choice has alleged that the State of New Jersey has no law enforcement justification for a subpoena the state has issued for First Choice’s donor list. Based on later filings in the case, First Choice claims that New Jersey, a state where elective abortions remain legal, is trying to use its subpoena power to silence the anti-abortion advocates, i.e., First Choice’s donors, from advocating against abortions. First Choice operates strictly non-abortion health care facilities for pregnant women. For jurisdictional purposes, First Choice’s claim does “aris[e] under this Constitution,”[3] easily giving federal courts Article III jurisdiction over the claim.

The real problem with this situation is the Court’s decision in Americans for Prosperity Foundation v. Banta, 594 U.S. 595 (2021), to impose the burden of proving the lawfulness of its subpoena upon the state itself.  The First Amendment contains no outright prohibition of state investigations of charities, or their donors. . An improper motivation to censor the speech or the religious observance of charitable donors would certainly violate the First Amendment, but a justified  investigation into the lawfulness of their behavior would not. The Court’s alleged “right” of charitable donor privacy has no basis in the actual text of the First Amendment. At best, the alleged “right” is only weakly implied by the “right of the people peaceably to assemble” language of the First Amendment. However, the Assembly Clause’s clear purpose, as shown by its immediate context within the rest of the First Amendment itself, was and remains the protection and even the enhancement of everyone’s rights to express their politics and religious beliefs. Good faith law enforcement investigations do not necessarily interfere with those First Amendment rights, and the good faith of our law enforcement officers ought to be presumed, until proven otherwise.  

Traditionally in a court of law, the party claiming unlawful conduct by the opposing party has had the burden of proving that unlawful conduct. The Court’s doctrine of charitable donor privacy reverses that burden of proof. Perhaps that should be done in our modern world. But that would be a decision for the duly elected lawmakers of our republic to make. The First Amendment itself, as written, does not require it.  

/s/ Dan D. Rhea

[1] See Americans for Prosperity Foundation v. Banta, 594 U.S. 595 (2021).

[2] “The judicial Power of the United States, shall be vested in one supreme

Court, and in such inferior Courts as the Congress may from time to time

ordain and establish. . . . The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution . . . .” (U.S. Const., Art. III, §§ 1-2).

[3] See Note 2, supra.