via jonathanturley:
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.” . . .
h/t ReviewEquivalent1266