From yesterday's decision by Judge Joseph Goodwin (S.D. W. Va.) in W. Va. Rivers Coalition, Inc. v. McCuskey:
The Attorney General of West Virginia has used the State's power to compel two citizen organizations to open ten years of their files: their drafts and internal arguments, the groups they have funded, the people who serve on their boards, the coalitions they have joined, and what they have told the agencies they petition.
asserted
they → use → agencies
Neither organization markets goods nor services relevant to the subpoenas.
asserted
organization → market → subpoenas
The Attorney General identifies no consumer who was cheated, no sale, and no purchase made in reliance on anything either group said.
asserted
group → identify → anything
What these organizations do is argue in public about what coal, oil, and gas do to West Virginia's waters and climate.
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coal → argue → waters
The State's chief legal officer, who has publicly condemned that advocacy, now demands to know how they reached their views and who stood with them.
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who → condemn → them
The First Amendment forbids a State from using its investigative power that way, and I will not allow it while this case is pending.
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case → forbid → it
The country was founded on the premise that a citizen owes the government no account of his opinions or of the people he holds them with.
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he → found → them
The Attorney General has demanded that two citizen organizations hand the State their working lives.
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organizations → demand → lives
The State wants a decade of what they published, down to a note sent to a single person outside the organization, along with the unreleased drafts and the internal arguments over what to say.
asserted
they → want → what
He demanded the names of the organizations that fund them and what each gave, and he has now withdrawn that demand.
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he → demand → demand
He still wants the groups they paid, the board members they share, the coalitions they joined, and the comments they filed with the agencies they were petitioning.
asserted
they → want → agencies
Because the demand period runs to the date of compliance, the subpoenas reach new communications written while they remain outstanding.
asserted
they → run → communications
No demand identifies a consumer, a sale, or a statement anyone relied on.
asserted
anyone → identify → consumer
The subpoenas go into how these citizens arrived at their positions on public questions and who helped them get there.
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them → go → questions
The Plaintiffs in this case, West Virginia Rivers Coalition, Inc. ("WVRC") and 350.org, promote clean waters, reduced carbon emissions, and healthier lives for the people of West Virginia and beyond.
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Coalition → promote → Virginia
They do not sell any service.
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They → sell → service
They do not advertise a certain product of their own.
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They → advertise → own
Instead, they promote ideas.
asserted
they → promote → ideas
Some of that advocacy and some of those ideas are based, in part, on one model.
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Some → base → model
For that, they have been subpoenaed and asked to turn over ten years' worth of information far beyond any use of that one model.
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they → subpoena → model
AG McCuskey's actions violate the protections afforded by the United States Constitution.
asserted
actions → violate → Constitution
The Plaintiffs, on this record, have only engaged in protected advocacy speech, not commercial speech.
asserted
Plaintiffs → engage → speech
The subpoenas issued on the Plaintiffs trespass on their freedom of association, chill their exercise of the First Amendment, and deter others from engaging in similar conduct.
asserted
subpoenas → issue → conduct
Because Plaintiffs are likely to succeed on the merits of their claim that the subpoenas violate their First Amendment freedom of association, and because the remaining injunction factors also favor Plaintiffs, their Motion for a Temporary Restraining Order, is GRANTED.
uncertain
Motion → succeed → Order
Attorney General McCuskey is enjoined from enforcing these investigative subpoenas for the next fourteen days as set out in the Conclusion of this Memorandum Opinion and Order….
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McCuskey → enjoin → Opinion
Plaintiff WVRC is a river advocacy nonprofit corporation organized under the laws of West Virginia, and its "mission is to promote clean and healthy West Virginia waters for all."
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mission → organize → all
The nonprofit is committed to "clean water and healthy rivers through research, public education, policy advocacy, citizen water-quality monitoring, and engagement with state and federal agencies."
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nonprofit → commit → agencies
It has a modest staff of 15 and an annual budget of approximately $2 million primarily funded by foundations and other organizations.
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It → have → foundations
WVRC regularly submits comments on proposed legislation, permits, and rules concerning water quality.
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WVRC → submit → quality
And as this court is familiar, WVRC is a party litigant in multiple cases across the Fourth Circuit that challenge permits and approvals for infrastructure projects, pipeline projects, injection wells, and toxic discharges.
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that → challenge → projects
Because of its litigation efforts, WVRC coordinates "with other organizations through shared counsel" about litigation strategy.
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WVRC → coordinate → strategy
WVRC also engages in public education and information campaigns, including "statements about the effects of climate change in West Virginia's waters and communities, and about the environmental effects of fossil-fuel extraction, transport, and combustion."
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WVRC → engage → extraction
It is a member of multiple different coalitions committed to similar goals.
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It → commit → goals
To fund ts work, WVRC "solicits charitable contributions from the public through its website, mailings, emails, and events," but it does not publish the identities of its funders.
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it → fund → funders
Plaintiff 350.org is a nonprofit corporation, and its "mission is to build a grassroots movement to end the use of fossil fuels and to accelerate the transition to renewable energy."
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mission → build → energy
The organization publishes information about climate change, organizes public demonstrations, and coordinates with other organizations with similar goals.
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organization → publish → goals
350.org also "solicits charitable contributions from the public through grant applications and through its website, mailings, emails, and events."
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350.org → solicit → website
Those grants and contributions are subject to opt-in confidentiality in some cases and agreed upon confidentiality in other cases.
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grants → opt → cases
And an excerpt from the court's First Amendment analysis (for more on RCP8.5, see this N.Y. Times article):
[T]he Court applies "exacting scrutiny" to compelled disclosures of protected First Amendment speech and association.
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Court → see → speech
…
The subpoenas … "… concern[ ] an investigation into alleged unfair or deceptive acts or practices and other possible violations of the West Virginia Consumer Credit and Protection Act ('WVCCPA')."
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subpoenas → concern → Act
…and 55 more, not listed.
The Aporia