CA9: AZ GOP head denied injunction for Jan.6 committee subpoena for call logs in 1A challenge

The head of the Arizona GOP sued the January 6th Committee to block a subpoena to T-Mobile for her call records, not content, on First Amendment Free Association grounds. On appeal, the injunction is denied. This is similar to Eastman’s case where only call logs, not content, were sought. Ward v. Thompson, 22-16473 (9th Cir. Oct. 22, 2022):

The district court’s finding is amply supported by the record. In their declarations, the Wards say that they use their phones to communicate with patients in their medical practices, to talk to family and friends, and to “make and receive calls of a political nature” and “to and from people in the political world.” 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 these 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—or, presumably, of “social, economic, religious, [or] cultural” matters. Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). (Narcotics traffickers, or anyone else who might face such subpoenas, would be well advised to make at least a few calls to their preferred political party.) But that is not the law. And although the declarations also state that the Wards have received threatening and harassing messages because of their political activities, it does not follow that anyone known to have called them would face similar harassment.

Because there is no indication that the compelled disclosure in this case would deter protected associational activity, the exacting scrutiny standard does not apply. 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. Cf. Trump v. Thompson, 20 F.4th 10, 41 (D.C. Cir. 2021) (noting that “the January 6th Committee plainly has a ‘valid legislative purpose’” (quoting Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031–32 (2020))), cert. denied, 142 S. Ct. 1350 (2022). Ward participated in a scheme to send spurious electoral votes to Congress, a scheme that the Committee describes as “a key part” of the “effort to overturn the election” that culminated on January 6. Although Ward asserts that “[c]ongressional investigators already know what [she] did,” Committee explains that that is untrue: When the Committee sought to question her about those activities, she invoked the Fifth Amendment and refused to answer. In this civil proceeding, it is appropriate to draw adverse inferences from her assertion of the Fifth Amendment privilege—namely, that Ward’s conduct during the period in question went beyond simple discussions with her political associates, and that those with whom she communicated might have the information about her activities that she refused to provide. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

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