There is an important ruling out of the United States Court of Appeals for the Ninth Circuit this week where a divided panel held that Kelli Ward, the Chair of the Arizona Republican Party and former senatorial candidate, cannot withhold her cell phone records from the January 6th Committee. The impact on political speech could be not just chilling but glacial.
The court’s order denied Ward’s request to enjoin T-Mobile from providing her records to the Jan. 6 committee. What is striking about the ruling is the sweeping language employed by Judges Barry Silverman and Eric Miller. I do not view this as a partisan ruling but rather have concern over the dismissive character of the analysis over legitimate concerns raised by the forced disclosure of political associations under the First Amendment.
The J6 Committee issued a sweeping subpoena that previously encompassed even “Ward’s patient information.” However, it is her political associations that raised red flags.
The Supreme Court has repeatedly stressed that such demands for associational contacts are to be subject to “exacting scrutiny.” Americans for Prosperity Found. v. Bonta (APF), 141 S. Ct. 2373 (2021). The reason is the chilling effect on the key right “to associate with others for the common advancement of political beliefs and ideas.” Kusper v. Pontikes, 414 U.S. 51, 56 (1973). In her dissent to Americans for Properity Foundation, Justice Sonia Sotomayor acknowledged that the decision “presumes . . . that all disclosure requirements impose associational burdens.”
That was not evident in the majority opinion:
There is little to suggest that disclosing Ward’s phone records to the Committee will affect protected associational activity. Unlike the regulation at issue in Americans for Prosperity Foundation, which required organizations to reveal their major donors, this subpoena does not target any organization or association. The investigation, after all, is not about Ward’s politics; it is about her involvement in the events leading up to the January 6 attack, and it seeks to uncover those with whom she communicated in connection with those events. That some of the people with whom Ward communicated may be members of a political party does not establish that the subpoena is likely to reveal “sensitive information about [the party’s] members and supporters.” Americans for Prosperity Found., 141 S. Ct. at 2384. Grand juries—and, for that matter, civil litigants—routinely employ subpoenas for phone records, and any such subpoena necessarily reveals something about a person’s associations. We do not read Americans for Prosperity Foundation as establishing that all of those subpoenas are subject to First Amendment scrutiny.
To prevail, Ward must therefore identify some reason to think that compliance with this subpoena will burden association. The district court found that there is “no evidence to support [the] contention that producing the phone numbers . . . will chill the associational rights of Plaintiffs or the Arizona GOP,” and it determined that Ward’s arguments to the contrary are “highly speculative.” . . .
That is quite sweeping. It seems axiomatic that the forced disclosure of associational contacts with the head of the state Republican party will have an associational burden. The subpoena had the classic “fishing expedition” scope, including originally encompassing medical information.
The Court simply dismisses such obvious concerns and says “[b]ecause there is no indication that the compelled disclosure in this case would deter protected associational activity, the exacting scrutiny standard does not apply.” The court goes on to say that, if the standard applied, it would not make any difference because of the need to investigate “the causes of the January 6 attack and protecting future elections from similar threats.”
The majority also relied on an adverse implication rationale used in civil proceedings when someone invokes the Fifth Amendment’s Privilege Against Self-Incrimination, an inference that has long undermined this core constitutional right:
When the Committee sought to question her about those activities, she invoked the Fifth Amendment and refused to answer. In this civil proceeding, it is appropriate to draw adverse inferences from her assertion of the Fifth Amendment privilege—namely, that Ward’s conduct during the period in question went beyond simple discussions with her political associates, and that those with whom she communicated might have the information about her activities that she refused to provide. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).
The dissent notes that the Committee was not compelled to supply any specific basis for believing that Ward encouraged or participated in the riot: “the Committee has not provided any evidence or plausible reason to believe that Ward’s contacts (whether political associates, family, or friends) were involved in the events of January 6 or explain why information about her communications has any bearing on the Committee’s investigation.” Instead, the majority relies on Ward’s use of her constitutional right to remain silent.
This does not exonerate Ward for any role that she may have had in this riot. However, the dissent noted that the lack of balance raises serious constitutional concerns over the analysis of the court:
Regardless of Ward’s position regarding the 2020 election, her right to engage in discussions with her political associates remains entitled to First Amendment protection against the government’s compelled disclosure of her political affiliations. Maj. op. at 6–7. We must be vigilant to protect First Amendment rights—even when raised by an individual alleged to have engaged in a nefarious “scheme,” Maj. op. at 6—because “[t]he weakening of constitutional safeguards in order to suppress one obnoxious group is a technique too easily available for the suppression of other obnoxious groups to expect its abandonment when the next generally hated group appears,” Communist Party of the U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 166 (Black, J., dissenting). Because the majority has applied an erroneous legal framework, and the Wards’ claim that the Committee’s subpoena burdens Kelli Ward’s First Amendment rights at least raises a serious question on the merits, I dissent.
I agree that there is a compelling legislative and public interest in the investigation. That is why, while strongly disagreeing with the make up and approach of the J6 Committee, many of us still supported the investigation. Yet, that clear interest does not wipe away all countervailing constitutional considerations as the Democrats demand the political records and contacts of their political opponents.