First Amendment Issues, Congressional Subpoena Power at Stake in Backpage Court Case
A legal dispute between Backpage.com and the Senate Permanent Subcommittee on Investigations could have broad implications for Congress' future subpoena power and the First Amendment rights of online publishers and others, several observers said. The subcommittee has until 4 p.m. Friday to respond to last week's decision by the U.S. Court of Appeals for the D.C. Circuit to temporarily block a congressional subpoena that would have forced the online classified advertiser to hand over documents for the inquiry into whether the service facilitates online sex trafficking. Backpage lawyers argued last week in a filing that the subcommittee is using its "subpoena power as a bludgeon to burden or restrict editorial policies of which it disapproves," essentially endangering First Amendment rights for all online publishers.
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A spokesman for Senate Homeland Security and Governmental Affairs, which oversees the subcommittee, emailed this week that Chairman Ron Johnson, R-Wis., "supports the right of Subcommittee Chairman [Rob] Portman [R-Ohio] and Ranking Member [Claire] McCaskill [D-Mo.] to collect documents and information as part of their important and bipartisan investigation into human sex trafficking on the Internet." Lawyers for Backpage didn't comment.
Judge Rosemary Collyer of U.S. District Court for the District of Columbia Aug. 5 ordered the company to comply with the subpoena. Collyer said Backpage had 10 days to hand over documents about its "reviewing, blocking, deleting, editing, or modifying advertisements" in the adult sections, among other related materials. The D.C. Circuit, which issued the administrative stay Friday blocking Collyer's order, said it "should not be construed in any way as a ruling on the motion." The appeals court said it needs more time to review the case. The Senate panel, which has been seeking information from Backpage since April last year, issued the subpoena Oct. 1. Backpage CEO Carl Ferrer didn't show up for a November hearing. In March, the full Senate unanimously voted for civil action to enforce the subpoena, after the Homeland Security and Governmental Affairs Committee's unanimous recommendation two weeks earlier (see 1603170042).
Yiota Souras, general counsel with the National Center for Missing and Exploited Children, said in an interview Thursday that she thought the administrative stay was procedural and not an indicator of the merits of the case, as the court said in its filing. Essentially, the D.C. Circuit pushed "a big pause button" so it could better understand the case, she said. But Savannah Law School associate professor Andrew Wright said he thought the stay was "fairly unusual."
Wright noted the court said the administrative stay shouldn't be viewed as a ruling on Backpage's motion. "However, the legal standard for issuing a stay includes the likelihood Backpage.com will prevail, whether people will be irreparably harmed if the court does not preserve the status quo, or whether the case presents significant issues of public interest. If the D.C. Circuit thought the company’s arguments are wholly meritless that would make a stay unlikely," he said.
Souras described Backpage's First Amendment argument as "novel" by basically saying the subcommittee "doesn't have the authority even to be investigating for this, that or the other reason." She said the Senate panel has been "fairly clear" about its mandate and scope and, historically, has looked at online, child-related, criminal and corporate issues. But the main argument, Souras said, is how far does a First Amendment right go "when it butts up against allegedly criminal behavior maybe of some kind. And we know it’s very limited in certain contexts when there’s potentially an allegation of some kind malfeasance or misconduct. ...There are limitations even when you are involved partially in some kind of publishing activity."
Wright, who noted he hasn't read Backpage's arguments, said "government surveillance of internet activity certainly raises First Amendment concerns. People use various internet platforms for expression and associational behavior. A congressional subpoena can amount to coercive government collection akin to an intelligence surveillance program. So congressional oversight power is significant in relation to civil liberties," he said.
Covington & Burling attorney Robert Kelner said the case is important because it could have very broad implications for future congressional subpoena power. If the D.C. Circuit quashes the subpoena, he said "that would have a very dramatic effect, I think, because it’s so extraordinarily rare for a congressional subpoena ever to be quashed under any circumstances. And, so, you have to assume that in future cases many corporations would try to hang their hat on this case in evading compliance with the congressional subpoenas."
Congress and companies don't want to litigate over subpoenas and typically strike a deal, said Kelner. Companies don't want to litigate for public relations, reputational and cost reasons, and Congress is worried about losing subpoena power as an enforcement tool if a court quashes one, he said. "Far fewer than 1 percent" of the few congressional subpoenas are litigated, he said. In the rare situation where a court has quashed a subpoena, he said it's "defined a very, very narrow standard."