Why the Supreme Court should rein in lawfare against nonprofits

• “Lawfare” is a term for using legal proceedings to harm a political opponent. The U.S. Supreme Court recently heard oral arguments in a case that highlights this trend.
• The state of New Jersey is seeking to compel a religious nonprofit to disclose private information, including donor names and addresses, apparently because it disagrees with the organization’s position on abortion.
• The justices appear to recognize the threat to important First Amendment rights posed by this attempt and should clarify the need for New Jersey to respect the rights of groups currently disfavored by the state.

​One of the least attractive features of our current political atmosphere of polarization is the practice of “lawfare.” I’m not sure where this neologism originated, but it seems to have become trendy in the past few years. It is typically used to describe politically motivated prosecutions or civil lawsuits. The most common scenario is of a prosecutor or litigant aligned with one party or ideology, bringing legal charges against a political figure to derail their campaign or governance. The implication is that the charges are usually unfounded or at least inflated.

The term certainly seems apt, though, for a lower-profile case now being considered by the U.S. Supreme Court. The case, First Choice Women’s Resource Centers, Inc. v. Platkin, involves faith-based nonprofits that assist pregnant women rather than provide abortions.

The case originated with New Jersey’s attorney general who issued a subpoena to require First Choice to “turn over years of sensitive information, including donor names and contact information.” The subpoena threatened that failure to comply would subject First Choice to enforcement proceedings and contempt. The rationale for this demand was a concern that the center might mislead women into thinking it performs abortions when it does not. It seems clear that the decision was motivated by disagreement with the center’s policy of promoting childbirth rather than abortion. The attorney general had previously expressed criticisms of pregnancy resources on these grounds.

A state trial court ordered the center to comply, while allowing the center to object to the disclosure requirements. First Choice brought suit in federal court, arguing that the demand for information burdened its First Amendment rights, including its ability to share information and to seek donations from potential supporters who might fear retribution if their support was disclosed.

The U.S. Supreme Court has long recognized that private organizations have a right to protect the privacy of their members and supporters. In 2021, the Court invalidated a California policy that compelled nonprofits to disclose the identity of their donors to the state attorney general’s office. This line of cases seems to provide strong support for First Choice’s concerns.

The wrinkle is that New Jersey argues that the case should be heard in state court rather than precluded by a federal court decision on whether the state’s disclosure demands violate the First Amendment. This would prevent First Choice from seeking relief for any violation of its federal constitutional rights in federal courts, even though federal law provides for such relief.

In the oral argument, the justices seemed receptive to First Choice’s claims. Justice Clarence Thomas secured a concession from New Jersey’s attorney that there had been no complaints filed about First Choice’s work, which undercuts the idea that the state needed to compel disclosure of private information to conduct an investigation. Other justices asked questions that suggested they saw the threat of compelled disclosure to be enough of a threat to the rights of the center and its supporters to justify a constitutional challenge without a need for additional state court proceedings.

This case illustrates the risks lawfare poses to free speech, the right of association, and even religious freedom. Here, the victim is not a well-known politician with the ability to draw national attention to his or her grievances, but a small religious nonprofit in need of legal protection. The Supreme Court should provide that protection.