October 19, 2022
by Alexis Goodman
On August 9, 2022, the Department of Justice (DOJ) issued a subpoena to the grass-roots activist organization called Eagle Forum of Alabama (EFA). A group that only employs one employee full-time and one-part time, it is left to the mercy of the everyday citizen willing to set aside his or her time for some volunteer work.
The EFA has been present for the last forty-five years, attempting to, “mobilize in support of individual liberty, responsibility, the sanctity of life, and Constitutional principles of government.” Today they fight for their first amendment rights; the freedom of speech and to petition the government as the DOJ aims to “chill” those rights through their subpoena.
Eleven broad categories of documents were requested by the Department of Justice, and they can be compiled into the following:
Any writing, feedback, medical studies, opinions, evidence, written testimonies, letters, emails, reports, summaries, analyses, fact sheets, talking points, polling or public opinion data, presentations, videos, interviews, speeches, mass letters, newsletters, social media postings, documents concerning Eagle Forum of Alabama’s legislative or policy or initiatives or strategies with regards to transgender minors, documents by employees or members in support of VCAP, communications between EFA and employees or agents or members of the Alabama State Legislature or the governor’s office or the lieutenant governor’s office or the Alabama’s attorney general’s office or district attorney’s office, communications with other nongovernmental organizations or consultant or lobbyist, and last but not least, any records and minutes of EFA meetings; all of which must be, “related to or concerning VCAP, SB 184, HB 266, and/or any predecessor bills”.
If the subpoena’s broadness seen here were an ocean, it would be the Pacific. But in all its 64 million square miles, even the Pacific Ocean would fail to provide adequate coverage as to why the government should be allowed to do what they are doing.
Some background on this situation
The Alabama Vulnerable Child Compassion and Protection Act (VCAP) was signed into law and became effective May 8, 2022. This law would prohibit the distribution of gender-identity related medical treatments to minors. Included in this prohibition would be surgeries, puberty blockers, etc.
Shortly thereafter, the constitutionality of such a document was called into question with the Eknes-Tucker v. Marshall case. This is the case that triggered the DOJ’s interest and led them to intervene in the case on behalf of the opponents to the law. They then delivered two subpoenas to the doorsteps of Eagle Forum of Alabama and the Southeast Law Institute, but it is only the EFA that is fighting back against such a breach of their first amendment rights.
Both groups received the subpoenas because of their help and support for VCAP, with EFA specifically having helped since 2017. Neither of the groups are party to the litigation process involving VCAP but are being attacked merely because they took a stand against the gender-affirmation movement being supported currently by our government. Groups opposing the law were not requested to hand over information regarding their activism; no, only those who took a stand against big government in the name of children.
What motivates the Department of Justice?
Such conduct by the DOJ should be condemned and revoked by the courts for three reasons:
First, as the amicus brief prepared by fifty-three organizations, government officials, and private citizens in support of EFA put it, “all agree that the United States subpoena in this case is a transparent use of the civil litigation process to chill the speech and political organizing of those who hold views contrary to those of the United States and the Department of Justice”. They argued that not only would this attack mean a citizen’s political activity could be hampered, but also legislators would be hurt as they would no longer be able to hear from their constituents on issues concerning them.
Diving into the court filings pertaining to this case, the declaration of Margaret S. Clarke stands out. A volunteer for EFA, she shows firsthand how the DOJ’s subpoena will affect the motivation of those like her and considers it to be “political harassment”. Clarke explains that should the subpoena be enforced, she will be cautious in her future encounters with advocacy and, “at a minimum, I will be less likely to communicate with EFA membership or legislators”.
She adds concern for those whom she worked with, as many testimonies and witnesses were given by private citizens regarding the danger of transgenderism on the basis that their communications would be confidential. They would feel betrayed should their words be read over to the federal government, and even if those readings were guaranteed to be kept classified, we all know how prodigious the government is at keeping citizen information private.
Secondly, the only reason the government seeks information from EFA is because, as they put it in their subpoena, “Several public statements suggest that Eagle Forum of Alabama staff may have had some involvement in drafting the legislation or its predecessor bills.” They do not even know for a surety the extent of EFA’s involvement with VCAP. Additionally, even should they choose to hand over said information, “They cannot possible provide any legitimate information because those people and groups have no governmental role whatsoever.”
The third reason is because as stated in the amicus brief mentioned previously, DOJ’s subpoena more than likely violates Alabama Rules of Professional Conduct. “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” The government is well aware of the chilling effect caused by issuing subpoenas on a private organization, and their methods seen now cause many to question if they are only demanding this information from EFA to intimidate them.
A threat to us all
This David and Goliath scenario speaks volumes as to the state our country is in today. When you swim against the masses, you are guaranteed to stand out; but fortunately, our first amendment right was created to offer a protective shield against the pummeling bodies moving in the opposite direction. Unfortunately, that first amendment could see itself splintering under the “crushing weight of the federal government”.
We, at UFI, are highly concerned about this threat to every organization or individual who chooses to engage in public discourse and legislative efforts. Eagle Forum of America must prevail against this unprecedented government over-reach. We know, very well, it could be any one of us next.