Alabama judge has chance to be a hero for the First Amendment – Washington Examiner

A federal district judge now has a chance to vindicate the First Amendment rights of every American citizen and affinity group.

Judge Liles Burke of Alabama held a hearing on Friday on a motion to quash an abusive subpoena by the Justice Department. The subpoena was issued against the conservative Eagle Forum of Alabama, but it would have been just as abusive if filed against, for one example, the liberal NAACP.

The subpoena was issued by Assistant U.S. Attorney Jason Cheek, seeking an absurdly voluminous five full years of records, both paper and electronic, about every discussion the Eagle Forum had in support of a new law to restrict gender-transition procedures upon children. One bizarre aspect to the subpoena is that Eagle Forum is not even a party to the underlying case, in which the DOJ and others are challenging the constitutionality of Alabamas new law.

To assess constitutionality, it matters not which outside groups supported the law or why. Every citizen and group of citizens has a First Amendment right to petition the government and to speak and otherwise engage in the political process, for any reason whatsoever. Their reasoning has no bearing on the ultimate question of constitutionality, and they have every right to keep their communications private from government commissars and prosecutors.

If the shoe were on the other foot and the National Abortion Rights Action League had successfully petitioned a state legislature to make abortions legal for any reason up to the very moment of birth, the government would have no constitutional authority to demand NARALs records. NARALs stratagems, its allies, its membership, its phone calls, and its emails are none of the governments business unless somehow NARAL itself is credibly accused of a crime and even then, there would be tight restrictions on governmental authority to demand records.

Likewise with the Eagle Forum, which in no way, shape, or form is suspected of illegal activity. It is not and never will be illegal for a group of citizens to work for legislative change.

With the support of a host of congressmen and other conservative groups and legal experts, the state Eagle Forum understandably asked that the subpoena be withdrawn. What is astonishing is that only conservative groups joined the effort. How can left-wing groups not see how dangerous such power would be to them if used in the same way by a conservative DOJ? Where, pray tell, is the American Civil Liberties Union? Are conservative groups not as entitled to civil liberties as left-wing organizations?

Every individual and every public policy organization on the Left and on the Right should care when the Department of Justice seeks to chill the First Amendment rights and the speech and lobbying activities of American citizens, said Anne Cori, national chairman of the Eagle Forum (of which the Alabama group is an affiliate). Weaponizing the Department of Justice hurts all sides of the political debate.

Judge Burke, in Fridays hearing (he has issued no formal order yet), called the original subpoena vastly over-broad and unduly burdensome. Even before the judge uttered those words, the prosecutors, obviously realizing they had overreached, had offered to narrow the scope of the subpoena.

To which, in its reply brief, the Eagle Forum quite sensibly argued that in the case of such rights, to the contrary, no reasonable compromise was or is possible, and none is required.

Judge Burke would be right to order that no subpoena at all be issued to Eagle Forum. Fundamental rights arent sliceable.

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Alabama judge has chance to be a hero for the First Amendment - Washington Examiner