Arizona GOP Chair Raised Flawed First Amendment Claims: 9th Circuit

Saturday’s 9th U.S. Circuit Court of Appeals denial of Kelli Ward’s motion for an injunction to quash the House Jan. 6 Select Committee’s subpoena ordering T-Mobile to produce her phone records was the third such setback for the Arizona GOP chair in a month. U.S. District Judge Diane Humetewa in Phoenix previously denied Ward’s motions to quash on Sept. 22 and again on Oct. 7 (see 2210070026).

On Ward’s claim that releasing her phone records will infringe on her First Amendment associational rights, “we conclude that Ward has not raised serious questions on the merits -- and, a fortiori, that she is not likely to succeed on the merits,” said the 9th Circuit opinion shared by Judges Barry Silverman and Eric Miller, with Judge Sandra Ikuta dissenting. Before requiring the disclosure of sensitive information, “we must ask whether the compelled disclosure satisfies exacting scrutiny,” said the opinion.

Case law dictates that a compelled disclosure meets the exacting scrutiny standard if there is a substantial relationship between the disclosure requirement and a sufficiently important governmental interest, plus the requirement is narrowly tailored, said the court. “But the exacting scrutiny test does not apply to all compelled disclosures of information, regardless of the nature of the information sought.”

The 9th Circuit previously held in Perry v. Schwarzenegger, a 2010 case, that the party resisting disclosure must make a prima facie showing that enforcement will result in a chilling of group members’ associational rights, said the opinion. “Here, 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 v. Bonta in 2021, which required organizations to reveal their major donors, the committee’s T-Mobile subpoena for Ward’s phone records “does not target any organization or association,” said the court. “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,” it said. 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, it said.

To prevail in her fight to quash the subpoena, Ward “must therefore identify some reason to think that compliance with this subpoena will burden association,” said the opinion. Humetewa in the district court found there was no evidence to support the contention that producing the phone numbers would chill the associational rights of Ward or the Arizona GOP, and Humetewa determined that Ward’s arguments to the contrary are highly speculative, it said.

The 9th Circuit reviewed Humetewa’s “factual finding for clear error,” and concluded that her decision was “amply supported by the record,” said the opinion. In her declaration, Ward, a practicing physician, said she uses her phone to communicate with patients, converse with family and friends, and to talk with political allies in the Arizona GOP, it said: “Those vague statements do not show that disclosing the phone numbers involved would reveal anyone’s private organizational membership, much less that the people involved in the calls would be reluctant to associate with any organization or political party if their identities were revealed.”

If declarations like Ward’s were sufficient, “it would mean that anyone could raise a First Amendment objection to any subpoena for records of calls that included discussions of politics,” said the opinion. “Because there is no indication that the compelled disclosure in this case would deter protected associational activity, the exacting scrutiny standard does not apply,” said the court. “But even if that standard did apply, this subpoena would satisfy it. The subpoena is substantially related to the important government interest in investigating the causes of the January 6 attack and protecting future elections from similar threats.”

When the committee sought to question Ward about her activities before the Jan. 6 insurrection on the Capitol, “she invoked the Fifth Amendment and refused to answer,” said the opinion. “Having attempted the less intrusive method of asking Ward directly, the Committee has a strong interest in pursuing its investigation by other means,” it said. “The subpoena is a narrowly tailored mechanism for doing so because it seeks only Ward’s phone records, only from the critical window of November 1, 2020, through January 31, 2021, and only metadata, not content or location information.” The temporary injunction the 9th Circuit imposed Oct. 18 to block T-Mobile’s release of the phone records the next day (see 2210190005) is “lifted,” said the court.

Ikuta in her dissent argued the subpoena fails the exacting scrutiny standard because the committee “has not provided any explanation as to why the phone records are relevant to its investigation.” By denying Ward’s motion for an injunction pending appeal, the majority “likely prevents” her from raising serious questions about her constitutional rights, because once T-Mobile produces her phone records, her appeal “may be moot,” she said.

During the period for which the phone records were sought, “the legitimacy of the 2020 presidential election was in dispute, and Ward used her phone to communicate with Party members about the election,” said Ikuta. Contrary to the majority’s view that the subpoena does not target any organization or association, “the subpoena on its face compels the disclosure of identifying information of Party members with whom Ward had contact,” she said. “Such identifying information may expose these members to congressional investigation, perhaps federal criminal investigation, and related public criticism.” The communications at issue here “between members of a political party about an election implicate a core associational right protected by the First Amendment,” said the dissenting judge.