Case 2:22-cv-00184-LCB-CWB Document 165-1 Filed 09/20/22 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

BRIANNA BOE, et al., )

)
Plaintiffs, )
)
v. ) No. 2:22-cv-184-LCB-CWB
)
STEVE MARSHALL, et al., )
)
Defendants. )

BRIEF OF 53 ORGANIZATIONS, FEDERAL AND STATE LEGISLATORS,

AND INDIVIDUAL CITIZENS AS AMICI CURIAE IN SUPPORT OF NON-
PARTY EAGLE FORUM OF ALABAMA’S OBJECTION TO AND MOTION
TO QUASH DOCUMENT SUBPOENA

C. Boyden Gray Albert L. Jordan (ASB-5222-D51A)

(pro hac vice forthcoming) WALLACE, JORDAN, RATLIFF &
R. Trent McCotter BRANDT, L.L.C.
(pro hac vice forthcoming) 800 Shades Creek Parkway, Suite 400
BOYDEN GRAY & ASSOCIATES Birmingham, Alabama 35209
801 17th Street NW., Suite 350 (205) 874-0305
Washington, DC 20006 [email protected]
202-706-5488
[email protected]
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iii

IDENTITY AND INTEREST OF AMICI ..................................................................... 1

SUMMARY..................................................................................................................... 3

I. There Is a Long History of Governments Seeking to Intimidate and

Chill Political Activity ...................................................................................... 4

II. The Government’s Subpoena Is a Transparent Violation of the First

Amendment ...................................................................................................... 9

A. The Government’s Subpoena Seeks Constitutionally Protected

Information, with No Valid Justification—Demonstrating the
Intent to Chill Protected Activity .......................................................... 10

B. The Government Has No Legitimate Interest in a Private Non-

Profit’s Internal Documents in This Case ............................................. 13

C. The Government’s Subpoena Does Not Even Pretend to Be

Tailored, Confirming the Intent to Punish Protected Activity ............. 15

III. The Court Should Consider Whether Issuance of the Government’s

Subpoena Violated the Court’s Local Rules ................................................. 18

CONCLUSION............................................................................................................. 19

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TABLE OF AUTHORITIES

Page(s)
CASES

Adderley v. Florida, 385 U.S. 39 (1966) ........................................................................ 6

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) .......................... 10, 11, 12, 15, 16, 17

Americans for Prosperity v. Bonta, 141 S. Ct. 2373 (2021) .......... 10, 11, 13, 15, 16, 17

Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011).......................................... 5, 6, 8

Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43 (2015)......................................... 14

Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022)................................ 14

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)........................................ 6, 7

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).................. 8, 10, 11, 12, 13

Perry v. Schwarzenegger, 591 F.3d 1126 (9th Cir. 2009) ................................... 8, 9, 12

Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947 (1984) ................. 11

Shelton v. Tucker, 364 U.S. 479 (1960) ................................................................. 10, 16

Talley v. California, 362 U.S. 60 (1960)........................................................................ 6

Tenney v. Brandhove, 341 U.S. 367 (1951) ................................................................. 14

Thomas v. Collins, 323 U.S. 516 (1945) ........................................................................ 5

United States v. Cruikshank, 92 U.S. 542 (1875) ......................................................... 5

Whole Woman’s Health v. Smith, 896 F.3d 362 (5th Cir. 2018) .......................... 12, 13

U.S. CONSTITUTION AND DECLARATION OF INDEPENDENCE

U.S. Const. amend. I ...................................................................................................... 4

The Declaration of Independence para. 4 (U.S. 1776).................................................. 7

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STATUTES

Conventicle Act of 1664, 16 Car. 2, c. 4......................................................................... 7

Bill of Rights of 1689, 1 Wm. & Mary c. 2 .................................................................... 6

MISCELLANEOUS

1 Annals of Congress (1789) (J. Gales ed. 1834)........................................................... 7

4 Parliamentary History of England (W. Cobbett ed. 1808) ........................................ 6

Ala. R. Prof’l Conduct 4.4 ............................................................................................ 18

Maggie Blackhawk, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131
(2016) ............................................................................................................ 5–6, 7–8

Alex Isenstadt, Document Reveals Identity of Donors Who Secretly Funded

Nikki Haley’s Political Nonprofit, Politico (Aug. 26, 2022),
https://www.politico.com/news/2022/08/26/donors-secretly-funded-nikki-
haleys-nonprofit-00053963..................................................................................... 17

Zusha Elinson, California Takes Down Firearms Dashboard After Gun-

Owner Data Are Leaked, Wall St. J. (June 29, 2022),
https://www.wsj.com/articles/california-takes-down-firearms-dashboard-
after-gun-owner-data-are-leaked-11656535100 .................................................... 17

John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly (2012)............. 7

M.D. Ala. L.R. 83.1 ..................................................................................................... 18

William Sharp McKechnie, Magna Carta: A Commentary on the Great

Charter of King John (rev. 2d ed. 1958) .................................................................. 5

United States Office of Personnel Management, Cybersecurity Resource

Center, https://www.opm.gov/cybersecurity/cybersecurity-incidents/ (last
accessed Sept. 17, 2022) ........................................................................................ 17

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IDENTITY AND INTEREST OF AMICI1

Amici consist of the following organizations, government officials, and private

citizens (who sign in their individual capacities):

Advancing American Freedom, Inc.

Alabama Center for Law and Liberty
America First Legal Foundation
American Family Association, Inc.
Americans United for Life
The Buckeye Institute
Cardinal Institute for West Virginia Policy
Center for Arizona Policy
Center for Family and Human Rights
Citizens United
Citizens United Foundation
The Commonwealth Foundation for Public Policy Alternative
Concerned Women for America
Faith & Freedom Coalition
The Family Action Council of Tennessee, Inc.
The Foundation for Government Accountability
Foundation for Moral Law
Frontline Policy Council
Independent Women’s Forum
John Locke Foundation
Judicial Watch, Inc.
The Liberty Justice Center
Louisiana Family Forum
Manhattan Institute
Michigan Family Forum
Mountain States Legal Foundation
The National Right to Work Committee
Oklahoma Council of Public Affairs
Parental Rights Foundation
Pennsylvania Family Council
Private Citizen
Protect Our Kids
Public Interest Legal Foundation
The Religious RoundTable, Inc.
Susan B. Anthony Pro-Life America

1No party or counsel for any party has authored this brief in whole or in part, nor
made any monetary contribution to fund the preparation or submission of this brief.
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Tea Party Patriots Action, Inc.

Tennessee Eagle Forum
Texas Public Policy Foundation

U.S. Congressman Robert B. Aderholt

U.S. Congressman Mo Brooks
U.S. Congressman Jerry L. Carl
U.S. Congressman Barry Moore
U.S. Congressman Gary Palmer
U.S. Congressman Mike Rogers

Alabama Sen. T. Christopher Elliott

Alabama Sen. J.T. “Jabo” Waggoner
Alabama Rep. Chip Brown
Alabama Rep. Arnold Mooney
Alabama Rep. Matt Simpson
Alabama Rep. Tim R. Wadsworth

Caroline M. Aderholt
Allen Mendenhall
Hon. Hans von Spakovsky

Amici comprise a wide range of organizations and individuals, from non-profit

policy groups, to federal and state legislators, to individual citizens. Their interests

and goals vary. But all agree that the United States’ subpoena in this case is a

transparent use of the civil litigation process to chill the speech and political

organizing of those who hold views contrary to those of the United States and the

Department of Justice. The subpoena harms not just members of the public across all

ideological and political spectra, who will be inhibited from open discourse and

petitioning, but also legislators themselves, who benefit from hearing from their

constituents without those citizens fearing subsequent federal investigations seeking

reams of protected materials.

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SUMMARY

In a transparent and flagrant violation of the First Amendment, the United

States served a subpoena on Eagle Forum of Alabama (“EFA”) with no legitimate

purpose but instead to intimidate and chill the free speech, associational, and

petitioning rights of an organization whose views are currently contrary to those of

the United States Government. In so doing, the government seeks to force a small

non-profit with only one full-time employee to pony up the resources to fight the

Department of Justice, the world’s largest law firm. The government’s message is

clear and unmistakable: exercise your rights and participate in the political process

at your own peril. Any group that might dare engage in grassroots political activity

on any controversial issue is now on notice that disfavored views will call down the

weight of the government and result in a subpoena from an Assistant United States

Attorney demanding every conceivable scrap of information relating in any way to

those protected actions, going back years.

For centuries, governments around the world have pursued similar tactics to

deter and punish speech, assembly, and political activity. Courts have long been a

bulwark against those efforts in the United States, thwarting such attempts to

circumvent core rights.

This situation should be no exception. Under Supreme Court precedent, to

obtain compelled disclosure of sensitive political speech materials, the government

would need to demonstrate a compelling or substantial interest. But the government

has no interest at all here. The subpoena’s transparently thin justification—premised

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on a passing remark by this Court at a hearing months ago, on a since-adjudicated

motion—demonstrates the lack of a valid basis for propounding the subpoena.

Moreover, the Supreme Court has made clear that generally even the legislature’s

motivations are irrelevant, and the motivations, intent, beliefs, and actions of private

parties are several degrees removed from that inquiry, as they have no governmental

role at all.

In short, the subpoena here seeks information that has no bearing on any

judicial inquiry into the subject of this lawsuit, i.e., the constitutionality of the

Vulnerable Child Compassion and Protection Act. This confirms the intent of the

subpoena to intimidate and chill grassroots political organizing, not just of EFA but

of any and all organizations that may try to organize and petition the government—

a conclusion made all the more apparent by the incredible overbreadth of the

subpoena.

This Court should quash the subpoena and prohibit the weaponization of the

civil litigation process against organizations with whom the United States

Government disagrees.2

I. There Is a Long History of Governments Seeking to Intimidate and

Chill Political Activity.

The First Amendment prohibits the federal government from “abridging the

freedom of speech, or of the press; or the right of the people peaceably to assemble,

2For ease of reading, this brief refers to the subpoena issued to EFA, but the Court
should also quash the similar subpoena issued by the United States to Southeast Law
Institute, for the same reasons. See ECF No. 152.
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and to petition the Government for a redress of grievances.” U.S. Const. amend. I. In

many cases, and especially this one, these rights “are inseparable.” Thomas v. Collins,

323 U.S. 516, 529–30 (1945). “The very idea of a government, republican in form,

implies the right on the part of its citizens to meet peaceably for consultation in

respect to public affairs and to petition for a redress of grievances.” United States v.

Cruikshank, 92 U.S. 542, 552 (1875).

The First Amendment has deep historical roots, driven in part by governments

demanding the identity of speakers and the substance of their non-public

communications, both to retaliate against prior speech and political organization, and

also to deter the exercise of those rights in the future.

“The right to petition traces its origins to Magna Carta, which confirmed the

right of barons to petition the King.” Borough of Duryea v. Guarnieri, 564 U.S. 379,

395 (2011) (citing William Sharp McKechnie, Magna Carta: A Commentary on the

Great Charter of King John 467 (rev. 2d ed. 1958)). In fact, “[t]he Magna Carta itself

was King John’s answer to a petition from the barons.” Id. (citing McKechnie, supra,

at 30–38). In the centuries that followed, the right to petition spread to the general

public and “often drove the legislative agenda, which included petitions for public and

private matters without any mechanism to distinguish them.” Maggie Blackhawk,

Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1144 (2016). “Petitioning

became an intrinsic part of English political life by the seventeenth century, the

words ‘petition’ and ‘bill’ were used interchangeably in legislatures, and the petition

process was regarded as part of the constitutional framework.” Id. This mechanism

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was “the primary means of political engagement for the unenfranchised and for

collective political activity, as petitioners formed associations and petitioned on

behalf of the collectivity.” Id. at 1144–45; see also Borough of Duryea, 564 U.S. at 395–

96.

By 1669, Parliament’s House of Commons resolved that “it is an inherent right

of every commoner of England to prepare and present Petitions to the house of

commons in case of grievance.” 4 Parliamentary History of England 432 (W. Cobbett

ed. 1808). Importantly, Parliament was clear “[t]hat no court whatsoever hath power

to judge or censure any Petition presented.” Id. at 433. The 1689 English Bill of Rights

similarly affirmed that “it is the right of the subject to petition the king,” and

therefore “all commitments and prosecutions for such petitioning are illegal.’” 1 Wm.

& Mary c. 2; see also Adderley v. Florida, 385 U.S. 39, 49 n.2 (1966) (Douglas, J.

dissenting).

The right to petition was no less important to the American colonists, where it

permeated political life. Borough of Duryea, 564 U.S. at 396; Blackhawk, supra, at

1145–47. However, the government continued to interfere with grassroots political

organizing. “Before the Revolutionary War colonial patriots frequently had to conceal

their authorship or distribution of literature that easily could have brought down on

them prosecutions by English-controlled courts.” Talley v. California, 362 U.S. 60, 65

(1960). The most famous example was “the pre-Revolutionary War English

pamphleteer ‘Junius,’ whose true identity remains a mystery.” McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334, 343 n.6 (1995). The Continental Congress ultimately

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cited violations by the English crown of the petition right as a justification for the

American Revolution. See The Declaration of Independence para. 4 (U.S. 1776).

After the Constitution was drafted, the Federalist Papers sought to persuade

the public to adopt that Constitution. It was no accident that “even the arguments

favoring the ratification of the Constitution advanced in the Federalist Papers were

published under fictitious names.” McIntyre, 514 U.S. at 342. The Anti-Federalists

likewise “tended to publish under pseudonyms.” Id. at 343 n.6.

When it came time to draft the Bill of Rights, some believed that an express

protection of the right to assemble was unnecessary. For example, Representative

Theodore Sedgwick of Massachusetts argued that “[i]f people freely converse

together, they must assemble for that purpose,” and thus “it is certainly a thing that

never would be called in question[.]” 1 Annals of Congress 759 (1789) (J. Gales ed.

1834). But it was necessary to preserve the right explicitly, Virginia’s John Page

contended, because dissenters had often “been prevented from assembling together

on their lawful occasions.” Id. at 760; see John D. Inazu, Liberty’s Refuge: The

Forgotten Freedom of Assembly 24 (2012) (citing Conventicle Act of 1664, 16 Car. 2,

c. 4).

The First Congress received “over six hundred petitions” on matters of both

private and public concern—“including regulation of commerce, the need for public

credit, the institution of slavery, requests for intellectual property protection,

disposition of public lands, public employment and elections, the location of postal

offices and federal courts, and the settlement of war debts and pensions.” Blackhawk,

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supra, at 1152. Many “proposed statutory language.” Id. The right to petition has

subsequently played a central role in our nation’s history. See, e.g., Borough of

Duryea, 564 U.S. at 396–97.

But even after adoption of the First Amendment, American government

officials have still sought to punish the right to free speech, association, and political

activity by demanding information about private individuals and political

organizations. One of the most famous examples was Alabama’s attempts in the

1950s to deter the activities of the NAACP by demanding its full membership rolls.

See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). Because “[i]nviolability

of privacy in group association may in many circumstances be indispensable to

preservation of freedom of association, particularly where a group espouses dissident

beliefs,” the demand for membership rolls violated the free speech and associational

rights of the First Amendment, applicable to the state via the Fourteenth

Amendment. Id. at 462.

As the subpoena at issue in this case demonstrates, such intimidation tactics

are becoming more common. For example, after Proposition 8 amended the California

Constitution to define marriage as between one man and one woman, challengers

issued subpoenas to proponents of the Proposition, demanding “internal campaign

communications relating to campaign strategy and advertising.” Perry v.

Schwarzenegger, 591 F.3d 1126, 1131 (9th Cir. 2009). The district court refused to

quash the subpoenas, but the Ninth Circuit granted mandamus, finding that such

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“discovery would have the practical effect of discouraging the exercise of First

Amendment associational rights.” Id. at 1132.

In sum, for centuries, governments and even private parties via litigation have

tried to chill and restrict fundamental speech, association, and petitioning rights by

demanding production of communications and materials by groups holding views that

are unpopular or controversial in some quarters. And for centuries, courts have

intervened to protect those core rights. This Court should do the same here, as

explained next.

II. The Government’s Subpoena Is a Transparent Violation of the First

Amendment.

The subpoena at issue in this case was drafted and served by the Department

of Justice on a non-profit organization that has not participated in any way in this

litigation. The United States, which is an intervenor in this case, seeks to use its

party status to issue subpoenas to acquire sensitive information it could never

otherwise obtain in compliance with the First Amendment. The mere issuance of this

subpoena—even if it is ultimately quashed—severely chills First Amendment rights

because individuals will now fear that their communications on any controversial

issue—either now or in the future—will be subjected to a subpoena issued by an

Assistant United States Attorney on behalf of the federal government. Those

individuals will undoubtedly curtail their political activities as a result. Indeed, the

curtailment of political activities has already occurred as a result of the subpoena

issued in this case.

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Although the chilling effect alone is sufficient to quash the subpoena, the lack

of any governmental interest or narrow tailoring suggest that chilling protected

conduct was also the government’s intent. This Court should not only quash the

subpoena but make clear that using the civil litigation process to punish and

intimidate those who may disagree on important political issues is unacceptable.

Indeed, free and open debate and public engagement is most important in the context

of controversial issues.

A. The Government’s Subpoena Seeks Constitutionally Protected

Information, with No Valid Justification—Demonstrating the
Intent to Chill Protected Activity.

“[C]ompelled disclosure of political affiliations and activities can impose just

as substantial a burden on First Amendment rights as can direct regulation.” AFL-

CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003); see NAACP, 357 U.S. at 462.

“Effective advocacy of both public and private points of view, particularly

controversial ones, is undeniably enhanced by group association,” and thus “[i]t is

hardly a novel perception that compelled disclosure of affiliation with groups engaged

in advocacy may constitute as effective a restraint on freedom of association” as even

a direct prohibition. NAACP, 357 U.S. at 460, 462. “Inviolability of privacy in group

association may in many circumstances be indispensable to preservation of freedom

of association, particularly where a group espouses dissident beliefs.” Id. at 462.

“Every demand that might chill association” is constitutionally suspect.

Americans for Prosperity v. Bonta, 141 S. Ct. 2373, 2387 (2021) (emphasis added).

“Even if there [is] no disclosure to the general public,” Shelton v. Tucker, 364 U.S.

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479, 486 (1960), the “unnecessary risk of chilling” nonetheless violates the First

Amendment, Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 968

(1984); see also AFL-CIO, 333 F.3d at 176.

Thus, where a political group demonstrates that a compelled disclosure is

“likely to affect adversely the ability of … [the group] and its members to pursue their

collective effort to foster beliefs which they admittedly have the right to advocate,”

the government may justify the disclosure requirement only by demonstrating that

it directly serves a compelling or substantial state interest. NAACP, 357 U.S. at 462–

63; Bonta, 141 S. Ct. at 2383.

The government’s subpoena to EFA deters the exercise of constitutional rights

because it transparently seeks to silence and intimidate, as well as retaliate against,

speech espousing a particular viewpoint and political association with which the

United States disagrees. EFA’s volunteers and associates will feel betrayed, and draw

down or discontinue their engagement with EFA, thereby stifling free discourse—not

just within EFA, but also between EFA and the public. Clarke Decl. (ECF No. 151-4)

¶¶ 12–13; Gerritson Decl. (ECF No. 151-3) ¶ 12. And EFA’s volunteers and associates

already have a well-founded basis for fearing they may become victims of the violence

increasingly visited on Americans who disagree on controversial issues. Clarke Decl.

(ECF No. 151-4) ¶¶ 12–13; Gerritson Decl. (ECF No. 151-3) ¶ 12.

Nor is EFA somehow unique in suffering chilling effects from a subpoena of

this nature. Private individuals and organizations of all stripes—like amici here—

now know that expressing or supporting opinions disfavored by the current

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Administration will be subject to the crushing weight of the federal government. They

will know that any communications or work product might be subject to a subpoena

issued by the United States and enforced by the Department of Justice, deterring

those individuals and groups from exercising their speech, associational, and

petitioning rights on controversial topics in the future. See NAACP, 357 U.S. at 462–

63.

In a similar case, the D.C. Circuit did not hesitate to recognize the “substantial

First Amendment interests” at stake via “chilling of political participation by [a

private organization’s] members” where the Federal Election Commission sought “the

names of hundreds of volunteers, members, and employees,” as well as “detailed

descriptions of training programs, member mobilization campaigns, polling data, and

state-by-state strategies.” AFL-CIO, 333 F.3d at 176–78; see also Perry, 591 F.3d at

1141–42 (“We have little difficulty concluding that disclosure of internal campaign

communications can have such an effect on the exercise of protected activities” by

“chilling participation and by muting the internal exchange of ideas.”). Those

requests were similar to, although still not as broad as, the subpoena here.

Similarly, the Fifth Circuit recently addressed a scenario where the Executive

Director of a religious organization testified in administrative proceedings in support

of several laws about abortion, and then the organization faced subpoenas from

private parties that challenged the laws in court. See Whole Woman’s Health v. Smith,

896 F.3d 362, 364–65 (5th Cir. 2018). The subpoenas demanded “[a]ll [d]ocuments

concerning [embryonic and fetal tissue remains], miscarriage, or abortion,” including

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all “communications” on these topics between members of the organization and “the

Office of the Governor of Texas, the Office of the Attorney General of Texas, or any

member of the Texas Legislature, since January 1, 2016.” Id. at 366. The Fifth Circuit

held that the chilling effect of this subpoena “seems self-evident” because the religious

organization would be unable “to conduct frank internal dialogue and deliberations.”

Id. at 373. And that was in the context of a subpoena issued by a private party, not

by the United States Government, as here, where First Amendment protections are

at their strongest.

Given both the documented and self-evident chilling effect of the subpoena

issued to EFA, this Court should next determine whether the government could prove

a compelling or substantial interest in the protected information. See NAACP, 357

U.S. at 462–63; Bonta, 141 S. Ct. at 2383. But as demonstrated next, there is no

governmental interest at all.

B. The Government Has No Legitimate Interest in a Private Non-

Profit’s Internal Documents in This Case.

The subpoena’s stated justification is exceedingly thin. It purports to seek

information solely because of a passing remark by the Court at a hearing that took

place months ago, on a motion that has already been adjudicated. See Subpoena Cover

Sheet (ECF No. 151-1) (“In April of this year, the United States—along with Private

Plaintiffs—sought to enjoin the enforcement of VCAP. During the preliminary

injunction hearing, the Court asked who drafted the bill that resulted in VCAP.”).

That single, off-hand remark by the Court is the government’s sole proffered

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justification for demanding five years’ worth of internal political information from a

private non-profit organization that has played no role in this litigation.

That contrived basis is all the United States can muster because there simply

is no legitimate interest in probing private parties’ protected speech and grassroots

efforts to influence possible legislation. The Supreme Court has held that even the

legislature’s own intent is irrelevant, with rare exception. See Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228, 2256 (2022) (“[I]nquiries into legislative

motives are a hazardous matter.”) (cleaned up). Moreover, even if the legislature’s

intent were relevant, the United States already has access to the legislative hearings

of the Vulnerable Child Compassion and Protection Act, which was debated at length

and featured extensive hearings, experts, and witnesses.

Similarly, individual legislators’ beliefs or intent are irrelevant to the judicial

inquiry because “it [is] not consonant with our scheme of government for a court to

inquire into the motives of legislators.” Tenney v. Brandhove, 341 U.S. 367, 377

(1951); see Dobbs, 142 S. Ct. at 2256 (“What motivates one legislator to make a speech

about a statute is not necessarily what motivates scores of others to enact it.”)

(cleaned up).

Individual citizens’ and groups’ motivations, beliefs, or communications are

even further removed. They cannot possibly provide any legitimate information

because those people and groups have no governmental role whatsoever. See, e.g.,

Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 62 (2015) (Alito, J., concurring)

(“Private entities are not vested with ‘legislative Powers.’”).

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The lack of government interest at issue is more than just a failure by the

United States to demonstrate relevance. It presents a fundamental constitutional

violation, given that the United States is the party seeking to compel this protected

information.

C. The Government’s Subpoena Does Not Even Pretend to Be

Tailored, Confirming the Intent to Punish Protected Activity.

Even where the government demonstrates a sufficient interest (which, again,

it hasn’t here), courts also consider “the degree to which the government has tailored

the disclosure requirement to serve its interests.” AFL-CIO, 333 F.3d at 176. “Narrow

tailoring is crucial where First Amendment activity is chilled—even if indirectly—

‘because First Amendment freedoms need breathing space to survive.’” Bonta, 141 S.

Ct. at 2384 (cleaned up).

The subpoena fails the tailoring requirement because it seeks essentially every

conceivable type and piece of information in existence that pertains in even the most

tangential ways to a lengthy list of legislative proposals. In short, the subpoena is not

tailored—and does not even pretend to be. In AFL-CIO, the D.C. Circuit noted the

Federal Election Commission likewise “made no attempt to tailor its policy to avoid

unnecessarily burdening the First Amendment rights of the political organizations it

investigates.” 333 F.3d at 178. Given this, the D.C. Circuit declined to engage in any

“detailed” analysis and concluded straightaway that the government had failed to

meet its burden. Id.

“Given the amount and sensitivity of th[e] information” that the subpoena

would collect, “one would expect” it to be “integral” to the fruition of the United States’

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interest in airing the issue of the Vulnerable Child Compassion and Protection Act’s

constitutionality. Bonta, 141 S. Ct. at 2386. But “the strength of the governmental

interest [does not] reflect the seriousness of the actual burden on First Amendment

rights.” Id. at 2383. “There is a dramatic mismatch”—indeed, there is no overlap—

“between the interests that the [United States] seeks to promote” and the subpoena

“in service of that end.” Id. at 2386.

Nor is there any merit to the notion that some type of protective order could

cure the serious First Amendment violations here. The government made the same

argument in AFL-CIO, and the D.C. Circuit rightly concluded that this would “turn[]

every discovery request and subpoena into a First Amendment court battle,” which

would “burden … the judiciary,” 333 F.3d at 179, as well as the private parties

themselves, who often lack the resources to engage in such fights. And even with a

protective order, the government itself would still possess reams of constitutionally

protected information, with the inevitable risk of retaliation against the disfavored

groups and individuals. This is precisely why courts have held that the First

Amendment provides strong protections from such compelled disclosures even when

there is never any public release. See Shelton, 364 U.S. at 486; AFL-CIO, 333 F.3d at

176.

Of course, odds are strong that there would be leaks of information the

government procures, regardless of any claim of confidentiality. As the Supreme

Court aptly put it in Bonta, given the frequency with which controversial material is

leaked or hacked, the government’s “assurances of confidentiality are not worth

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much” and “‘ring[] hollow.’” 141 S. Ct. at 2388 n.*.3 This only heightens the chilling

effects of the subpoena, as well as the government’s burden in demanding such

information. See, e.g., AFL-CIO, 333 F.3d at 176 (noting that the prospect of any

public release would “require[] a separate justification” beyond the extraordinary

showing already required).

***

The United States is surely aware of all this—the decades of caselaw, the

chilling of core constitutional rights, the irrelevance of EFA’s communications and

internal materials, the tremendous overbreadth of the requests, the difficulty of small

grassroots groups to defend themselves against the machinery of the Department of

Justice, and the likelihood of governmental leaks of protected information. As such,

there is only one possible purpose in serving the subpoena on EFA—to deter and

punish free speech, associational, and petitioning rights, not just of EFA but of any

3 Recent high-profile government data breaches and leaks indicate that private,
confidential information is not particularly safe inside government agencies. For
example, in 2015, the United States Office of Personnel Management announced that
the personal data—including social security numbers—of 21.5 million people were
stolen. OPM Cybersecurity Resource Center, https://www.opm.gov/cybersecurity/
cybersecurity-incidents/ (last accessed Sept. 17, 2022). Most recently, the State of
California leaked the ages and addresses of concealed-carry weapons permit holders.
Zusha Elinson, California Takes Down Firearms Dashboard After Gun-Owner Data
Are Leaked, Wall St. J. (June 29, 2022), https://www.wsj.com/articles/california-
takes-down-firearms-dashboard-after-gun-owner-data-are-leaked-11656535100.
Similarly, it appears that either the Internal Revenue Service or the New York
Attorney General’s Office cannot (or chooses not to) adequately safeguard confidential
tax returns of conservative organizations. Alex Isenstadt, Document Reveals Identity
of Donors Who Secretly Funded Nikki Haley’s Political Nonprofit, Politico (Aug. 26,
2022), https://www.politico.com/news/2022/08/26/donors-secretly-funded-nikki-
haleys-nonprofit-00053963.
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group that might dare to engage in grassroots political organizing with views adverse

to the United States Government.

This Court should quash the subpoena in full and make clear that the First

Amendment does not tolerate governmental use of the civil litigation process to

inhibit core constitutional rights, regardless of viewpoint.

III. The Court Should Consider Whether Issuance of the Government’s

Subpoena Violated the Court’s Local Rules.

Finally, the Court should consider whether, by directing or authorizing the

issuance of this unprecedented subpoena, Department of Justice leadership violated

this Court’s local rules, which incorporate the Alabama Rules of Professional

Conduct. M.D. Ala. L.R. 83.1(g). Alabama Rule 4.4 states, “In representing a client, a

lawyer shall not use means that have no substantial purpose other than to embarrass,

delay, or burden a third person, or use methods of obtaining evidence that violate the

legal rights of such a person.” Ala. R. Prof’l Conduct 4.4 (emphasis added); see also

M.D. Ala. L.R. 83.1(h) (dictating procedure for alleged violations).

To be clear, amici do not currently challenge the motivations of the Assistant

U.S. Attorney who signed the subpoena, but rather the Department of Justice’s Civil

Rights Division and leadership officials who presumably directed or authorized the

issuance of this unprecedented subpoena. Those high-level officials, who are running

this case on behalf of the government, would have realized the direct and inevitable

chilling effects of issuing the subpoena. And that violation remains even if the

government subsequently offered to narrow the requests, as doing so would not

remove the deterrence already visited upon EFA and similar organizations, which

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itself violates their rights, as discussed above. Moreover, it is worth noting that the

United States is an intervenor in this case, which raises questions about whether the

United States sought intervention, at least in part, for purposes of using its party

status to issue such subpoenas.

Merely quashing this subpoena is unlikely to deter the United States from

issuing such subpoenas in the future, perhaps to amici themselves. The government

could simply try again in the hopes of obtaining success, especially against small

groups or individuals unable to defend themselves adequately against the

Department of Justice. Further deterrence is needed to ensure the United States does

not again attempt to use the Court’s litigation process for intimidating and chilling

core constitutional rights of organizations whose views may diverge from those the

government holds at the moment.

At the very least, the Court should quash the subpoenas in a written opinion

that unmistakably vindicates the First Amendment rights at stake. This may help to

deter the government from using the awesome power of the Department of Justice to

chill the rights of citizens and organizations advocating positions contrary to those

the government currently holds.

CONCLUSION

The Court should quash the United States’ subpoena in full.

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Respectfully submitted this 20th day of September 2022.

/s/ R. Trent McCotter /s/ AlbertL. Jordan

C. Boyden Gray Albert L. Jordan (ASB-5222-D51A)
(pro hac vice forthcoming) WALLACE, JORDAN, RATLIFF &
R. Trent McCotter BRANDT, L.L.C.
(pro hac vice forthcoming) 800 Shades Creek Parkway, Suite 400
BOYDEN GRAY & ASSOCIATES Birmingham, Alabama 35209
801 17th Street NW., Suite 350 (205) 874-0305
Washington, DC 20006 [email protected]
202-706-5488
[email protected]

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CERTIFICATE OF SERVICE

I certify that on September 20, 2022, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system, which will send notification of

such filing to all counsel of record.

/s/ Albert L. Jordan

OF COUNSEL

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