Supreme Court Won't Block Senate Subpoena Targeting Backpage.com

A federal judge in Washington earlier ruled against Ferrer, requiring him to respond to the Senate Permanent Subcommittee on Investigations. In the Aug. 5 decision, U.S. District Judge Rosemary Collyer rejected Ferrer's argument that the Senate committee lacked the power to issue the subpoena.

However, Ferrer won an administrative stay from the D.C. Circuit on August 12 to temporary block the subpoena. In their petition for the stay, his defense lawyers framed the dispute as a fight over the First Amendment rights of companies such as Google and Facebook. “This case presents a novel First Amendment question of great significance: whether a Senate committee may use its investigative authority so as to intrude on the editorial processes of an online publisher of third-party content,” Ferrer's lawyers wrote in their petition. See , http://bit.ly/2dp8BLV.

But on September 2, the D.C. Court of Appeals refused to stay enforcement of the subpoena. See, Senate Permanent Subcommittee v. Ferrer, No. 16-5232.

A lawyer for Ferrer, Robert Corn-Revere of Davis Wright Tremaine, had argued that Ferrer's case was an example of a “disturbing” 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 subpoena, Corn-Revere said, invaded “core editorial functions” that include how Backpage reviews, edits or deletes advertisements.

Senate legal counsel Patricia Bryan countered that Ferrer's refusal to comply with the subpoena was based on “a novel and sweeping interpretation of the First Amendment.” The trial court noted that the information sought by the subpoena was “highly relevant” to the subcommittee's investigation and potential legislation on Internet sex trafficking, Bryan noted in the Supreme Court.

Bryan said much of sex trafficking on the Internet takes place on Backpage's online commercial marketplace. “Given Backpage's prominent position in the online sex marketplace, the subcommittee has sought to learn about the business practices Backpage employs to protect against the use of its website by sex traffickers,” Bryan told the High Court.

Marcia Coyle writes for The National Law Journal , an ALM sibling of Internet Law & Strategy. She can be reached at [email protected] and on Twitter @MarciaCoyle. C. Ryan Barber contributed to this report.