In a case challenging the subpoena power of Congress, the Supreme Court on Tuesday temporarily halted a court order requiring Backpage.com to turn over business records as part of a Senate investigation into sex trafficking.
The company and its CEO, Carl Ferrer, asked the justices earlier in the day to halt the order, which gave them only days to turn over the records. The Supreme Court issued a one-page order that agreed with the request until it hears from the Senate Permanent Subcommittee on Investigations, the other side in the case, by Sept. 9.
The company told the justices in an application that the case is of “nationwide importance” for First Amendment protections for publishers of third-party content, including social media giant Facebook. Backpage.com calls itself the second largest online classified ads website in the United States and says it handles millions of ads monthly, all posted by users in categories such as real estate, jobs, dating and adult.
The Senate investigations subcommittee, called PSI in the application, says the site’s content is linked to hundreds of reported cases of sex trafficking, including the trafficking of children. Republican Sen. Rob Portman of Ohio and Democratic Sen. Claire McCaskill of Missouri have pushed for the company’s records related to screening advertisements for warning signs of sex trafficking.
The lawmakers cite reports that sites such as Backpage.com allow sex traffickers to operate and avoid detection from law enforcement.
Ferrer and Backpage.com told the Supreme Court on Monday that the question is when the Senate’s investigative authority intrudes on editorial judgments — the choices that “are precisely the kind of speech and press functions that enjoy robust First Amendment rights.” The application calls the subpoena a fishing expedition that makes the company a target only because it hosts ads that some find distasteful.
The company asked the justices to halt the subpoena until the case can be fully appealed. The court will rule on the company’s application at a later date.
“This case highlights a disturbing — and growing — trend of government actors issuing blunderbuss demands for documents to online publishers of content created by third parties (such as classified ads) in a manner that chills First Amendment rights,” the petition stated.
“Here, PSI, in coordination with other governmental actors at various levels, asks the judiciary to approve the use of subpoena power as a bludgeon to burden or restrict editorial policies of which PSI disapproves,” it read.
Backpage.com’s application also cites an investigation launched by the Senate Committee on Commerce, Science and Transportation into Facebook’s “Trending Topics” — regarding the balance of political views in that section of the website — as a sign of the growth in the digital economy and how the question of First Amendment rights for publishers of third-party content “has become ever more pressing.”
The application asks the Supreme Court to issue an immediate stay of an Aug. 5 order from a federal district court in Washington that requires Ferrer to produce documents in response to the subcommittee’s subpoena within 10 days. U.S. District Judge Rosemary M. Collyer sided with the Senate, finding that “understanding the magnitude of internet sex trafficking and how to stop it substantially outweighs” Ferrer’s protected freedoms of speech.
That subpoena was delayed while the U.S. Court of Appeals for the District of Columbia Circuit considered the issue. But the D.C. Circuit declined Sept. 2 to put that order on hold, meaning Ferrer would have to submit the documents later this month without Supreme Court intervention.
“Backpage is finally running out of legal maneuvers to avoid complying with a lawful subpoena the U.S. Senate unanimously voted to enforce in federal court,” McCaskill, a former sex crimes prosecutor, said in a written statement after the D.C. Circuit decision Friday. “Today’s ruling means we’re one step closer to getting to the bottom of what if any businesses practices and policies this company has to prevent criminal activity — and we’re looking forward to reviewing these documents in our ongoing investigation of the scourge of sex trafficking on the internet.”
Following Tuesday’s Supreme Court decision, McCaskill said, “They have a right in America to challenge and go all the way to the Supreme Court. But I can’t imagine the Supreme Court is going to try and thwart a congressional investigation into child trafficking.”
The Senate subcommittee said it began the investigation of human trafficking on the internet in April 2015. The Senate in March passed a civil contempt resolution on a 96-0 vote to authorize a lawsuit against Backpage.com, the first time since the Whitewater controversy in the 1990s. The case marks the first time in more than 20 years that the Senate has enforced a subpoena in court.
Congress has worked to stop the use of Backpage for sexual exploitation. GOP Sen. Mark S. Kirk of Illinois wrote legislation, which has become law, making it a federal crime to operate a website in which you knowingly allow ads for sex with children.
Bridget Bowman contributed to this report.