Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...
Sept. 6 — The U.S. Supreme Court Sept. 6 stayed a federal district court order enforcing a Senate subcommittee subpoena for information about how Backpage.com LLC moderates its site for sex trafficking ( Ferrer v. Senate Permanent Subcomm. on Investigations, U.S., No. 16A236, 9/6/16 ).
Chief Justice John G. Roberts Jr. temporarily stayed an order of the U.S. District Court for the District of Columbia, pending a response from the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations. The response is due Sept. 9.
The legal battle tests the limits of lawmakers' ability to compel an online publisher to provide information about how it monitors third-party content. The Senate in March directed its legal counsel to go to court to enforce the subpoena (21 ECLR 401, 3/23/16).
Carl Ferrer, chief executive officer of the online classified ads site, earlier in the day asked Roberts for a stay pending appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Ferrer is fighting the subpoena, issued by the subcommittee as part of an online human trafficking probe, for documents concerning Backpage's screening, deleting or editing of ads in its adult sections. Ferrer argued that denying his request would injure his First Amendment rights “in ways that will be irreparable” should Ferrer prevail on appeal.
The D.C. Circuit Sept. 2 denied Ferrer's emergency motion for a stay pending appeal. Subcommittee chairman Rob Portman (R-Ohio) told reporters Sept. 6 that he expects the Supreme Court to uphold the circuit court decision, a Portman spokeswoman told Bloomberg BNA.
Sen. Claire McCaskill (D-Mo.), the subcommittee's ranking member, told Bloomberg BNA that in the U.S. “Backpage is free to exhaust every legal avenue to avoid turning over documents in our investigation, but we remain confident our right to investigate child sex trafficking will prevail.”
The Senate subcommittee sought to enforce a subpoena requesting documents on Backpage's screening and editing of ads in its adult sections, limitations for users on posting ads and reviewing of user accounts. The district court, ruling to enforce the subpoena, said Ferrer failed to show how it would violate either his or Backpage's free speech rights (21 ECLR 31, 8/10/16).
Ferrer argued in his Sept. 6 petition that the subpoena “indisputably strikes at the heart of Backpage's editorial decision-making,” the kind of free speech that enjoys “robust First Amendment rights.”
He cited Google Inc. v. Hood, 96 F. Supp. 3d 584 (S.D. Miss. 2015). In that case, a federal district court ruled that Mississippi Democratic Attorney General Jim Hood's 79-page subpoena over Google Inc.'s alleged failure to block objectionable content would “likely produce a chilling effect on Google's protected speech.” (20 ECLR 473, 4/1/15) The U.S. Court of Appeals for the Fifth Circuit vacated the district court's preliminary injunction against Hood's subpoena on other grounds (21 ECLR 799, 5/25/16).
Ferrer argued that as in Hood, the focus of the subpoena is whether Backpage does enough to screen for and block potentially non-protected third-party content. “This case is about nothing but editorial judgment—and the First Amendment protection it enjoys,” Ferrer said.
Akin Gump Strauss Hauer & Feld LLP represented Ferrer. The Office of Senate Legal Counsel represented the subcommittee.
To contact the reporter on this story: Alexis Kramer in Washington at email@example.com
To contact the editor responsible for this story: Keith Perine at firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)