What unites pro-life pregnancy centers, gun rights activists and a university legal clinic that seeks to expand animal rights?

Fear of the federal courts shutting them out when political opponents launch state investigations to drain them of resources and intimidate donors by trying to expose their identities.

A motley crew of nonprofits and activists recently filed friend-of-the-court briefs asking the Supreme Court to consider a case against New Jersey Attorney General Matthew Platkin by pro-life First Choice Women's Resource Centers, the target of the Planned Parenthood-allied Democrat's "non-self-executing state civil subpoena," as Platkin's opposition brief puts it.

The dry legal issue of when – if ever – such targets can challenge their state proceedings in federal court, on the grounds of First Amendment chilling effects, has staggering consequences for organizations nationwide that are out of political alignment with state leaders.

Democratic AGs have liberally used civil subpoenas and civil investigative demands against pro-life centers. 

But so have Republican AGs including Ken Paxton of Texas against the original Twitter for its onetime ban on President Trump and Missouri's Andrew Bailey against Media Matters for America for its campaign to starve Elon Musk's X of ad revenue.

A little-watched Judicial Conference of the United States proceeding created similarly strange bedfellows on the related issue of expanding disclosure requirements for friend-of-the-court briefs, which a disability rights lawyer warned could inhibit the "First Amendment right to petition courts on matters of public interest."

It was prompted by carrot-and-stick legislation and jawboning by Sen. Sheldon Whitehouse, D-R.I, and Rep. Hank Johnson, D-Ga., in the name of exposing the "powerful special interest groups" behind "faux litigation" that allegedly seeks to hoodwink judges.

National Review blasted the "shady" senator for "trying to smuggle his legislation into the federal rules" while allegedly using the Senate Environment and Public Works Committee to direct $6.9 million in grants to environmentalists who paid his wife $2.6 million "directly or through her consulting firm," citing a new Senate Ethics Committee complaint against Whitehouse.

The Electronic Frontier Foundation, which has fought to stop pro-life ads targeting abortion-seeking women and prevent censorship of abortion information, filed comments last month against the proposed Judicial Conference changes, saying they would reduce the diversity of arguments and disincentive groups with "limited resources" from filing briefs.

Delaware allegedly banned factual pro-life ads by pregnancy centers through legislation now under legal challenge by the National Institute of Family and Life Advocates, a friend-of-the-court filer in the SCOTUS petition, and its Delaware member A Door of Hope. Such laws tend to do worse in court than do AG investigations like Platkin's.

First Choice, represented by the Alliance Defending Freedom, filed the petition for certification with SCOTUS days after President Trump's second inauguration, arguing the 3rd U.S Circuit Court of Appeals worsened a split among federal appeals courts by finding its federal claims weren't "ripe" and it hadn't yet suffered enough "injury" from Platkin.

President Trump-nominated Judge Stephanos Bibas expressed concern at oral argument about the "preclusion trap" if First Choice lost in state court and then couldn't bring a federal case — a situation nullified by SCOTUS in 5th Amendment takings cases in 2019.

He dissented from Democratic nominees by finding the case "indistinguishable" from a 2020 SCOTUS precedent against California's compelled disclosure of donor identities and in favor of Americans for Prosperity, which filed a SCOTUS brief in First Choice's favor.

Platkin's opposition denied there was even a split between the 5th Circuit, which found "challenges to non-self-executing subpoenas are never ripe," and the 9th Circuit in Paxton's investigation of Twitter, which found "ripeness depends on the facts," or that the 3rd Circuit sided with the 5th. 

"Instead, the [3rd Circuit] panel concluded that [First Choice's] claims were unripe based upon fact-specifc considerations, including the failure to show a sufficient chill to its speech on this record," Platkin wrote. It does not reflect the approach of either 5th or 9th Circuit, whose "alleged split … has not had any practical effect in real-world cases."

The University of Denver's Animal Activist Legal Defense Project, which "works with a variety of unpopular activists accused of civil disobedience and direct action," filed a joint brief with the Manhattan Institute and Religious Freedom Institute.

"As organizations that pursue policy goals that encounter political opposition, amici rely on the First Amendment as a bulwark" against chilling attempts by governments such as "demand for disclosure of donor, member, and volunteer information," their joint brief says.

"Even more striking" than requiring First Choice to fully litigate in state court and risk the preclusion trap, they said "the panel held that the target’s First Amendment claims were not ripe even after the state initiated and doggedly pursued enforcement."

This is at direct odds with SCOTUS erasing the preclusion trap in taking cases in 2019's Knick, and the high court "should not allow this failed experiment to be replicated in the First Amendment context," the brief says.

SCOTUS unanimously reinstated the National Rifle Association's First Amendment lawsuit against New York's former financial services superintendent for pressuring regulated insurers to drop NRA-endorsed plans, which pro-life centers then used against Democratic AGs trying to stop their promotion of so-called abortion pill reversal.

The Washington state-based Second Amendment Foundation's brief in favor of First Choice seeks to build on that progress against blue-state jawboning, noting its routine legal fights with the Evergreen State, which elected its aggressive AG Bob Ferguson governor last fall.

Ferguson was a recurring player in campaigns against pregnancy centers, only dropping his investigation into Obria Group and Obria Medical Clinics PNW after a clinic documented that his probe caused it to lose insurance and pay seven times more to replace it.

As AG, Ferguson "singled out SAF for a campaign of relentless harassment because of its political beliefs and activities, including its positions on gun control, its outspoken public criticism of the [AG's office], and its legal challenges to the AGO’s actions and policies," yet SAG's federal chilling-effects lawsuit was dismissed for the same reason as First Choice's.

This is especially remarkable "in a circuit that has rejected a state exhaustion requirement," it said, referring to the 9th's Twitter ruling, which begs "further guidance from this Court."

The district court said SAF would have to "force" Ferguson to seek enforcement of his civil investigative demands by halting SAF's voluntary compliance before it could sue in federal court, and that its claims weren't ripe until Ferguson concludes or enforces.

This reading of federal precedent forces plaintiffs to seek "state court remedies" by risking legal penalties for disregarding CIDs and challenging demands in a "truncated statutory timeframe" when they may be unaware of "a basis for asserting constitutional defenses," SAF said.

The only other option is waiting for the AG to "unilaterally" end an investigation, "which could take years, cost the recipient hundreds of thousands of dollars in attorney fees, and continuously divert the recipient’s resources and attention" from its mission indefinitely, a textbook example of chilling effects, the brief says.