American Chemistry Council v. Bonta: A Decision in Support of Trade and Professional Associations’ First Amendment Rights

Without yet providing a definitive response to that question, the May 1 decision by Judge Amit P. Mehta in American Chemistry Council v. Bonta holds out the possibility that such communications will be protected from discovery. The decision delivers several critical lessons every membership-based organization should internalize.

American Chemistry Council’s (ACC) offense in the California Attorney General’s (AG) view was failing to produce its communications with association members created in the process of submitting survey data to the Federal Trade Commission (FTC). The California AG demanded to see all communications related to that submission — including the names of individual company representatives who had shaped the comments — claiming that the effort might be deceptive. ACC withheld internal documents explaining strategy, timing, and member input related to its FTC filing. After ACC sued to protect the information from discovery, the California AG withdrew the subpoena and moved to dismiss the case as moot. But the court concluded the case was not moot and suggested that the association may well rely on First Amendment protections to withhold the requested materials.

While the decision did not yet reach the merits of ACC’s case challenging the subpoena, the decision suggests that providing information to a government agency may be protected from discovery by virtue of the First Amendment. This is so even when the subject of the discovery purports to be the investigation of a potential “fraud” or “misrepresentation.”

Judge Mehta recognized that California’s subpoena could very easily be an attempt to punish protected petitioning activity. His ruling signals that officials cannot confidently sidestep constitutional scrutiny merely by labeling the speech untruthful.

For associations that routinely file comments in rulemakings, publish white papers, or testify before legislatures, the decision reinforces that their advocacy may be protected by the First Amendment, which shields organizations from being compelled to reveal internal deliberations and member identities. Judge Mehta explained that forced disclosure could chill the collaborative spirit the First Amendment seeks to protect.

The decision also confirms that an association can hale an out-of-state regulator into federal court where the association is headquartered. Judge Mehta considered the real-world facts; the subpoena aimed at ACC’s Washington, DC, office, the personal service in DC, and the chilling effect on local advocacy. Those contacts, the court concluded, satisfied the District’s long-arm statute and due-process requirements, offering associations a strategic choice of forum and a procedural safeguard for organizations whose core advocacy work is centered in DC.

Associations can learn from ACC’s approach and this decision by clearly labeling and managing privileged materials and segregating internal strategy discussions from public-facing advocacy. The decision serves as a vital reminder for membership organizations to weave constitutional considerations into their compliance protocols. When confronted with a broad discovery demand, counsel should assess any First Amendment implications and prepare a tailored privilege log.