Federal judge kills subpoena that Locke helped fight in Alabama case

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  • A U.S. District Court judge has quashed a controversial subpoena in an Alabama case that generated free-speech concerns for the John Locke Foundation and other groups.
  • The judge ruled that the federal government had pursued an overly broad subpoena against Eagle Forum of Alabama and Southeast Law Institute, policy groups unrelated to the underlying lawsuit.

A federal judge has thrown out a subpoena that generated opposition from the John Locke Foundation and other defenders of free speech. The subpoena had targeted nonprofit groups working on a high-profile public policy debate in Alabama.

The subpoena sought background information from Eagle Forum of Alabama and Southeast Law Institute. Both groups had participated in the public debate over Alabama’s Vulnerable Child Compassion and Protection Act. Neither group is a party to the underlying lawsuit challenging the act.

“The Government’s nonparty subpoenas seek material outside the scope of discovery,” wrote U.S. District Judge Liles Burke in an order issued Monday. “The subpoenas command Eagle Forum and Southeast Law Institute to produce eleven broad categories of evidence, ranging from draft legislation, to communications with the Alabama Legislature, to polling or public opinion data, to social media postings.”

“These materials are unlikely to reveal or lead to any information that would help resolve the fundamental issue in this case, which is whether Section 4(a)(1)–(3) of the Alabama Vulnerable Child Compassion and Protection Act is constitutional under the Fourteenth Amendment,” Burke added. “Thus, the requested material has little — if any — relevance for purposes of discovery.”

“Furthermore, the burden of the requested material greatly outweighs any slight relevance it may have,” Burke wrote. “Eagle Forum and Southeast Law Institute are nonprofit organizations staffed almost entirely of volunteers.”

Burke noted that the federal government amended its request after pushback over the original subpoena.

“[T]he Government’s eleventh-hour ‘narrowing’ of the requested material suggests that the subpoenas, as written, are overly broad and unduly burdensome given the limited resources of the nonparties,” he wrote. “Considering the relevance (or lack thereof) of the requested material, the burden of production, the nonparties’ resources, and the Government’s own conduct, the Court finds that the subpoenas exceed the scope of discovery.”

The federal government could issue a new subpoena “that is far more narrowly tailored,” Burke wrote. “Alternatively, if they so choose, the parties may conduct any such discovery informally.”

Carolina Journal reported Oct. 21 that Burke had “castigated” federal government lawyers during a hearing about the subpoena.

The John Locke Foundation signed on to a Sept. 20 friend-of-the-court brief challenging the subpoena. The brief labeled the subpoena an effort to chill political speech. Parties signing the brief asked Burke to “prohibit the weaponization of the civil litigation process against organizations with whom the United States Government disagrees.”

Locke is one of more than 50 organizations, state legislators, members of Congress, and individuals to back the brief in the case titled Boe v. Marshall.

The dispute stems from Alabama’s debate over the Vulnerable Child Compassion and Protection Act. It banned hormone treatments and gender reassignment surgeries for minors. The Alabama legislature approved the measure this year, and the governor signed it into law.

The Biden administration’s U.S. Justice Department then filed suit against the Alabama law. A federal judge agreed in May to block enforcement of the measure while the court case proceeds.

In August the U.S. Attorney’s office in Birmingham issued a subpoena to Eagle Forum of Alabama, seeking “all information related to the non-profit’s legislative activities promoting” the disputed legislation since 2017.

“[T]he United States’ subpoena in this case is a transparent use of the civil litigation process to chill the speech and political organizing of those who hold views contrary to those of the United States and the Department of Justice,” according to the friend-of-the-court brief. “The subpoena harms not just members of the public across all ideological and political spectra, who will be inhibited from open discourse and petitioning, but also legislators themselves, who benefit from hearing from their constituents without those citizens fearing subsequent federal investigations seeking reams of protected materials.”

“In a transparent and flagrant violation of the First Amendment, the United States served a subpoena on Eagle Forum of Alabama with no legitimate purpose but instead to intimidate and chill the free speech, associational, and petitioning rights of an organization whose views are currently contrary to those of the United States Government,” the brief continued. “In so doing, the government seeks to force a small non-profit with only one full-time employee to pony up the resources to fight the Department of Justice, the world’s largest law firm.”

“The government’s message is clear and unmistakable: exercise your rights and participate in the political process at your own peril. Any group that might dare engage in grassroots political activity on any controversial issue is now on notice that disfavored views will call down the weight of the government and result in a subpoena from an Assistant United States Attorney demanding every conceivable scrap of information relating in any way to those protected actions, going back years.”