Supreme Court Reinforces Donor Privacy Protections, Permitting Immediate Federal Court Challenge to State Subpoenas

On April 29, 2026, the United States Supreme Court issued a unanimous opinion in First Choice Women’s Resource Centers, Inc. v. Davenport, where it held that a nonprofit suffered an injury to its First Amendment right of association when it was subpoenaed by a state attorney general to produce donor information, including donor identities.¹ Justice Gorsuch, writing for the Court, held that the nonprofit petitioner could challenge the subpoena in federal court without first waiting for a state court to compel compliance.

The decision carries important privacy implications for universities, hospitals, health care nonprofits, advocacy organizations, and other entities that maintain sensitive donor, member, or supporter data. While some media coverage of the ruling has narrowly focused on the organizational mission of the petitioner, the practical upshot of the ruling is broader: a government demand for such sensitive data can be challenged in federal court immediately, before any sensitive information must be disclosed. This provides an up-front procedural safeguard for donor and member privacy.

Background

In 2023, the New Jersey Attorney General’s Office issued a subpoena to First Choice Women’s Resource Centers, Inc., a religious nonprofit organization that does not provide or refer clients to abortion services. The subpoena, issued pursuant to the New Jersey Consumer Fraud Act and related statutes, demanded production of 28 categories of documents, including the full name, address, telephone number, and place of employment of every donor other than those who donated through a specified webpage. The subpoena warned twice that noncompliance could render First Choice liable for contempt of court and other penalties.

First Choice challenged the subpoena in federal court under Section 1983, arguing that the demand violated its First Amendment associational rights. The district court dismissed, and a divided Third Circuit panel affirmed, reasoning that absent a state court order compelling production, the organization had suffered no cognizable injury. The Supreme Court granted certiorari and unanimously reversed, remanding the case for further proceedings.

Supreme Court’s Analysis

The Court grounded its decision in the line of associational rights precedents from NAACP v. Alabama ex rel. Patterson to Americans for Prosperity Foundation v. Bonta (AFP).² Compelled disclosure of affiliation, the Court reiterated, can restrain freedom of association as effectively as more direct suppression, and demands for private donor information inevitably deter the exercise of First Amendment rights.³ Stressing the “vital relationship” between associational privacy and the freedom to associate, the Court held that an injury in fact arises not only from tangible harm but also when a defendant burdens a plaintiff’s constitutional rights—and government demands for donor information have precisely that effect.⁴ Critically, the burden arises “not just when a demand is enforced, but when it is made and for as long as it remains outstanding.”⁵

These themes were front and center at oral argument in December. Justice Kavanaugh, invoking the ACLU’s amicus brief, observed that “a subpoena seeking sensitive donor information can chill a disfavored speaker’s protected associations long before it’s ever enforced.”⁶ Justice Kagan, meanwhile, pressed counsel for the New Jersey Attorney General on what an ordinary person presented with the subpoena would think upon being told “don’t worry, it has to be stamped by a court”—suggesting such reassurance would ring hollow.⁷ And Chief Justice Roberts probed what the state intended to do with the donor names, addresses, and places of employment—a line of questioning that underscored the breadth of the demand relative to the state’s expressed justification.⁸

The Court rejected each of the New Jersey Attorney General’s counterarguments. Drawing on Shelton v. Tucker and AFP, the Court emphasized that demands for private donor information burden First Amendment rights “[e]ven if there [is] no disclosure to the general public,” and that even confidential government holdings remain vulnerable to hacks, leaks, and unauthorized disclosures.⁹ That one specific donation website remained unaffected by the state’s subpoena did not mitigate the injury to First Choice, and neither did the state’s confidentiality assurances extinguish that injury.¹⁰

Key Takeaways

The decision carries practical significance for any organization that collects or maintains private information about its donors, members, alumni, or other supporters in connection with First Amendment-protected activity—and that could find itself on the receiving end of a state subpoena. Among the key implications:

• Federal forum available immediately.Organizations that receive investigative subpoenas for donor or member information may bring Section 1983 challenges in federal court upon receipt, without awaiting state enforcement proceedings.
• Subpoena response protocols may warrant review.Organizations receiving state investigative subpoenas—particularly those targeting donor, member, or alumni information connected to protected First Amendment activity—should reassess their response protocols, including whether to seek a protective order, challenge the subpoena in federal court, or take steps to document the associational interests at stake and safeguard sensitive information throughout the process.
• Confidentiality commitments and partial carve-outs do not defeat scrutiny.Government demands for donor or member information remain subject to heightened First Amendment scrutiny even where accompanied by confidentiality assurances or partial carve-outs that permit some associational activity to proceed.

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Ropes & Gray will continue to monitor developments in this area, including related state and federal activity. If you would like to learn more about the developments in this Alert, please contact the authors or your usual Ropes & Gray attorney contacts.