On June 16, 2025, the Supreme Court granted certiorari in a case from the Third Circuit regarding the availability of a federal forum to raise constitutional challenges to a subpoena issued by a state attorney general.1 The ultimate resolution of this case will be important for parties asserting that they are the targets of unconstitutional investigations by state officials.
At issue in the case is whether the recipient of a state investigatory demand can avail itself of a federal forum to litigate its constitutional challenges prior to the enforcement of the demand in state court, or whether it must instead raise those challenges in state court in response to an enforcement action by the state. The question formally presented before the Court is: “Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?”
The case was brought by First Choice Women’s Resource Centers, Inc., a group of faith-based pregnancy centers that was served an administrative subpoena in 2023 by the Attorney General of New Jersey. Among other demands, the subpoena sought First Choice’s donor records and identities. First Choice filed a Section 1983 action in federal court, alleging that the subpoena violated the First Amendment by infringing the group’s rights to free speech and association. The litigation then took a number of different turns, all of which prevented First Choice from obtaining a ruling on its First Amendment claims.
The district court dismissed the case for lack of subject matter jurisdiction, concluding that First Choice’s claims were not ripe and therefore not justiciable by a federal court “because no actual or imminent injury has occurred.”2 It reasoned that, under state law, only the state court has the power to enforce or quash the subpoena, and that First Choice’s claims would ripen only after the state court enforced the subpoena.3 First Choice appealed the district court’s decision.
Following the district court’s decision, the Attorney General filed a motion to enforce the subpoena in state court, and First Choice cross-moved to quash the subpoena. The state court required First Choice to fully respond to the subpoena but did not threaten contempt if First Choice failed to do so.4 The state court also declined to reach First Choice’s constitutional claims.5 First Choice appealed the state court’s denial of its motion to quash, and subsequently, the Attorney General filed a motion to compel First Choice to comply with the subpoena. But the state court declined to rule on the Attorney General’s motion to compel while First Choice’s state court appeal was pending.6
In the meantime, the Third Circuit had remanded First Choice’s federal suit to district court.7 Following remand, First Choice filed a renewed motion for emergency relief based on its constitutional claims. The district court again denied its motion, holding that First Choice’s claims would not be ripe until a state court ordered it to respond to the subpoena under “threat of contempt.”8
First Choice then appealed a second time, and the Third Circuit affirmed the district court’s ruling in a 2-1 per curiam decision. The majority held that First Choice’s constitutional claims were unripe for a number of reasons: First Choice “[could] continue to assert its constitutional claims in state court as that litigation unfolds; the parties have been ordered by the state court to negotiate to narrow the subpoena’s scope; they have agreed to so negotiate; the Attorney General has conceded that he seeks donor information from only two websites; and First Choice’s current affidavits do not yet show enough of an injury.”9 Judge Bibas dissented, finding First Choice’s constitutional claims ripe.10
First Choice then sought certiorari from the Supreme Court. After considering the matter at nine consecutive conferences, the justices agreed to hear the case.
The Supreme Court will therefore decide whether a recipient of a state investigatory demand can challenge the demand in federal court when the demand has not been enforced by a state court through sanctions. Section 1983 of title 42 provides a right of action to sue state officials and others acting under the color of state law for constitutional violations, and “[t]he ‘general rule’ is that plaintiffs may bring constitutional claims under § 1983 ‘without first bringing any sort of state lawsuit, even when state court actions addressing the underlying behavior are available.’”11 Nevertheless, federal courts can review only claims that are ripe and therefore within their subject matter jurisdiction. It is unclear how the Supreme Court will decide when a constitutional challenge to a state investigatory demand is ripe and which court (state or federal) must resolve it. If the Supreme Court affirms the Third Circuit’s decision and decides that constitutional claims brought by recipients of a state investigatory demand are not ripe until the subpoena has been enforced through sanctions by a state court, or that the claims should be fully adjudicated in state court only, plaintiffs would, at a minimum, experience significant delay in their ability to raise constitutional challenges in federal court. And there is also a risk that adjudication of the constitutional claims by a state court would bar further federal litigation (other than via certiorari from a decision by the state supreme court) under the doctrine of res judicata. With an increase in investigations and enforcement actions brought by state attorneys general on both sides of the political spectrum, it will be important for the Court to clarify when a federal forum is available for plaintiffs seeking relief.
Footnotes
