Judge slams U.S. Justice Department in Alabama case that attracted Locke’s attention

A federal judge “castigated” the U.S. Justice Department this month for pursuing a subpoena targeting an Alabama group involved with issue advocacy. That’s according to a report Friday at PJMedia.com. It’s a case that has attracted the John Locke Foundation’a attention.

U.S. District Judge Liles Burke criticized the Justice Department during an Oct. 14 hearing for its “vastly overbroad and unduly burdensome” subpoena against Eagle Forum of Alabama, according to the report. Burke declared he “would have issued an order to quash” the subpoena had the Justice Department not scaled back its original request to “1%” of its original demands.

“And Burke hinted that he would be open to considering sanctions against the Justice Department,” wrote Hans van Spakovsky and Zack Smith.

Burke asked Justice Department attorney Jason Cheek during the hearing why the government had scaled back its original subpoena so drastically, according to the report. Cheek cited amicus, or friend-of-the-court, briefs in the case supporting Eagle Forum, along with the targeted group’s decision not to negotiate a narrowing of the subpoena with the government.

“In other words, only because there was vigorous opposition to the subpoena by multiple organizations did the Justice Department decide to withdraw its disgraceful subpoena,” von Spakovsky and Smith wrote. “And that opposition entailed costs and time to not only the Eagle Forum, but the dozens of organizations that came to the Forum’s defense via amicus briefs.”

The PJMedia.com report is based on a transcript of the Oct. 14 hearing. Filed Friday, the transcript is not scheduled for public release until January 2023.

The John Locke Foundation signed on to a Sept. 20 friend-of-the-court brief challenging the federal government’s use of the subpoena to chill political speech. 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.”

“For centuries, governments around the world have pursued similar tactics to deter and punish speech, assembly, and political activity,” according to the brief. “Courts have long been a bulwark against those efforts in the United States, thwarting such attempts to circumvent core rights.”

“This situation should be no exception. Under Supreme Court precedent, to obtain compelled disclosure of sensitive political speech materials, the government would need to demonstrate a compelling or substantial interest. But the government has no interest at all here.”

“[T]he subpoena here seeks information that has no bearing on any judicial inquiry into the subject of this lawsuit, i.e., the constitutionality of the Vulnerable Child Compassion and Protection Act,” the brief added. “This confirms the intent of the subpoena to intimidate and chill grassroots political organizing, not just of EFA but of any and all organizations that may try to organize and petition the government — a conclusion made all the more apparent by the incredible overbreadth of the subpoena.”

Jon Guze, senior fellow in legal studies at the John Locke Foundation, explained in September why Locke took notice of the Alabama case. “There are far too many attacks on First Amendment rights these days, including by the Department of Justice, but this is something new,” Guze said. “We decided to join the brief because we’re hoping to stop this particular line of attack before it spreads.”