The Justice Department has hit the Eagle Forum of Alabama with a voluminous subpoena that violates the organization’s First Amendment rights to speak freely, engage in the political process, and talk to their elected representatives. It’s an intimidation tactic, pure and simple, and shows just how partisan the department has become. This out-of-control behavior should scare every citizen and volunteer organization, no matter where they stand on the political or social spectrum.
Eagle Forum is a very small non-profit in Alabama. It only has one full-time employee and a second, part-time employee. Virtually all of its work on issues of interest to its members is done by volunteers. It is the quintessential, uniquely American grassroots membership organization that French historian Alexis de Tocqueville lauded in Democracy in America.
As the Eagle Forum’s motion to quash the government subpoena says, one of the issues its members have been concerned over is “gender-altering medical treatment to minors” and the “permanent and adverse effects of such medical procedures on those minors.” Those serious, lifelong effects deeply concern many physicians and parents.
Members of the Eagle Forum made their worries known by doing things every American has an absolute right to do: they spoke out, made speeches, organized meetings, talked to other residents and organizations in the state, and contacted their elected state representatives. In other words, they exercised their constitutional rights to engage in “freedom of speech,” to “peaceably assemble,” and “to petition the Government for a redress of grievances.” They also exercised their right to associate, recognized by the Supreme Court as implicit under the Fourteenth Amendment.
None of these activities should trigger stalking by Justice Department lawyers. So how has this come about?
Earlier this year, the Alabama legislature passed the Alabama Vulnerable Child Compassion and Protection Act, which became effective on May 8. It bans puberty blockers, hormone therapy, and surgery to alter the biological sex of a minor. A huge number of left-wing advocacy organizations immediately sued the state, and the U.S. Justice Department intervened in the lawsuit, echoing their claims that the new Alabama law violates the Equal Protection Clause of the Fourteenth Amendment.
The Eagle Forum is not a party to the lawsuit. Yet the Justice Department has served what is referred to as a third-party subpoena on the Eagle Forum. This subpoena outrageously demands that the Eagle Forum and its members turn over all:
- information and communications it has or engaged in over the law and any predecessor bills;
- materials that were considered by the Forum connected to the legislation or any draft or model bills;
- documents concerning the Forum’s “legislative or policy goals, initiatives, and/or strategies relating to medical care or treatment of transgender minors, or minors with gender dysphoria”;
- communications with—and testimony, letters, reports, etc., sent to—state legislators or their staff; and any other government agencies and officials in Alabama over the legislation;
- communications with any other nongovernmental organizations over the legislation;
- internal minutes and records of meetings, polling and public opinion data, video presentations and speeches, newsletters and emails, and social media postings related to the legislation.
In other words, the Justice Department wants to turn the Eagle Forum inside out, forcing it to turn over its records on everything it does. This would let government lawyers paw through and scrutinize everything, including privileged communications and even personal discussions and communications with other private citizens and nonprofit organizations.
And there isn’t a single, justifiable reason for the department to do this. The Eagle Forum is not a party in the lawsuit. It is not a government agency. It is not the legislature. It has no power to vote to enact this (or any) legislation or sign it into law.
Keep in mind that the lawsuit is making a constitutional claim. The plaintiffs, including the Justice Department, are arguing that the statute as written violates the U.S. Constitution. So, what do the Eagle Forum’s polling data or social media posts have to do with that constitutional question? What do its internal records, its “policy goals, initiatives, and/or strategies,” or the communications of its members with state legislators have to do with that issue?
The answer is: absolutely nothing. None of the documents or information sought by the Justice Department has any relevance to whether the text of a state law violates the Fourteenth Amendment.
This subpoena, issued by Jason R. Cheeks, an attorney in the U.S. Attorney’s Office in the Northern District of Alabama, has but one intent: to harass and intimidate a conservative organization for daring to engage in the democratic process by working on an issue that inflames the Left.
The right to associate freely with other citizens who share your interests was recognized by the Supreme Court in 1959 in NAACP v. Alabama. Ironically enough, in that case, the Alabama state government was harassing the NAACP with similar demands for information due to its work on civil rights issues and legislation.
In an affidavit filed with the court in the current case, Rebecca Gerritson, the executive director of the Eagle Forum of Alabama, correctly warns:
If this subpoena is enforced, legitimate, law-abiding organizations like ours will be subject to scrutiny for engaging in constitutionally protected activities. Further correspondence by EFA, including emails, notes, presentations, speeches, interviews, etc. could be weaponized by government officials who hold (or are being required to assert) opposite political views. In addition, enforcement of the federal government’s subpoena would set a precedent that would stifle other citizens who want to exercise their constitutional right to make their views known to their elected officials on public policy matters.
This is a dangerous action by the Justice Department. It’s something that all Americans who value their constitutional rights should oppose.
UPDATE: The Justice Department has issued a press release announcing that Jason R. Cheek, the department lawyer who served this harassing subpoena on the Eagle Forum of Alabama, has been appointed by Jay E. Town, the U.S. Attorney for the northern part of the state, to “serve as the district election officer for the Northern District of Alabama” in the upcoming November election. So Cheek, the lawyer who is trying to intimidate state residents who are members of the Eagle Forum for speaking out and engaging in the democratic process, is the “district election officer” who will be responsible for “handling any complaints of election fraud or voting rights abuses.” Given Cheek’s reprehensible conduct in this case, this is not an appointment likely to generate confidence in the electorate of Alabama that the Justice Department will handle such complaints in a non-partisan, unbiased, and fair manner.