Supreme Court Stays Backpage Subpoena Enforcement

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By Alexis Kramer

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.”

Free Speech at Issue

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 akramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

For More Information

Roberts' order is available at http://src.bna.com/ikI.

Ferrer's petition is available at http://src.bna.com/ii5.

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