Supreme Court blocks congressional Backpage subpoena

Supreme Court | Classified website gets temporary reprieve in fight over sex ad screening policy
by Gaye Clark
Posted 9/09/16, 12:51 pm

Chief Justice John Roberts blocked a congressional subpoena on Tuesday that required online classified website Backpage to produce information on how it screens ads for sex trafficking.

In March, the Senate voted 96-0 to hold Backpage in contempt for refusing to comply with a subpoena to appear before a congressional committee. The contempt charge allowed the Senate to pursue Backpage for the requested documents in federal court.

Backpage lawyers argued the case “highlights a disturbing and growing trend of government actors issuing blunderbuss demands for documents” and insisted its records are protected by the First Amendment.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Robert Corn-Revere, a lawyer for Backpage wrote.

What Backpage lawyers call an “expression of an idea,” others call illegal activity. Backpage, which sells ads in 431 U.S. cities and another 444 worldwide, stands accused of making huge profits by assisting traffickers who advertise minors for sex. The website posts more than a million sex ads each day. According to the National Center for Missing and Exploited Children, 71 percent of all reports of suspected child sex trafficking have a link to Backpage. 

Last month, federal District Judge Rosemary M. Collyer rejected arguments from Backpage CEO Carl Ferrer that the Senate’s subpoena was unconstitutional, overly broad, and burdensome.

“It would appear that Backpage has changed its moderation processes for the very purpose of avoiding inquiry. The First Amendment does not give Mr. Ferrer an ‘unlimited license to talk’ or to publish any content he chooses,” Collyer said when she issued her ruling.

Backpage then asked for an emergency motion from a D.C. federal appeals court, which sided with the Senate and again ordered the embattled website to respond to the subpoena by Sept. 9. That prompted Backpage’s emergency appeal to the U.S. Supreme Court.

Roberts said Backpage does not have to comply with the appeals court order until the Supreme Court takes further action. The Senate is required to respond to the appeal today.

Central to Backpage’s defense is a small section in the Communications Decency Act (CDA), which says online intermediaries that host or republish speech aren’t responsible for what their customers say and do. The company also insists holding it responsible for its customers’ postings would “chill free speech” online. Most state judges have agreed.

Haley Halverson, communications director for the National Center on Sexual Exploitation, does not.

“They’re exploiting a loophole in the law that says that a website does not have to be held accountable for user-generated content on that website,” she told Onenewsnow. Her organization is recommending an amendment to the Communications Decency Act to remove the loophole, which she maintains “Congress never intended.”

Gaye Clark

Gaye is a graduate of the World Journalism Institute mid-career course.

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