U.S. Capitol. (Photo: Diego M. Radzinschi/ ALM Media)
A federal appeals court on Friday temporarily blocked a congressional subpoena compelling the web classifieds company Backpage.com and its chief executive to provide information to a U.S. Senate committee investigating sex trafficking on the internet.
On Friday, attorneys for Backpage CEO Carl Ferrer urged the U.S. Court of Appeals for the D.C. Circuit to intervene before a Monday deadline to respond to the congressional subpoena.
“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.
Ferrer is represented by Robert Corn-Revere and Ronald London of Davis Wright Tremaine and by Steven Ross and Stanley Brand of Akin Gump Strauss Hauer & Feld. Backpage general counsel Liz McDougall declined to comment.
A Washington federal district judge ruled against Ferrer on Aug. 5, giving him until August 15 to provide information to the Senate Permanent Subcommittee on Investigations. In the decision, U.S. District Judge Rosemary Collyer ruled the Senate committee’s subpoena was within congressional power.
“Mr. Ferrer argues that the subpoena lacks a legislative purpose and does not seek information that is pertinent to an investigation within the subcommittee’s jurisdiction or power,” Collyer wrote. “A cursory review of the subcommittee’s investigatory authority and actions in this instance demonstrate that these objections are just wrong.”
Ferrer’s lawyers argued Friday that the Senate committee is asking the courts to sign off on the use of subpoenas “as a bludgeon to burden or restrict editorial policies of which it disapproves.”
“The District Court was dismissive of Backpage.com’s First Amendment concerns because they did not fall into familiar areas in which this Subcommittee or other legislative bodies historically abused authority—including efforts to root out subversives, political dissidents, or civil rights agitators,” Ferrer’s lawyers wrote. “But the decision overlooked the way broad and punitive investigatory demands increasingly are used in the online context to exert pressure on speakers and publishers of third-party content.”
Ferrer’s lawyers pointed to a recent dispute between Google Inc. and the Mississippi state attorney general, Jim Hood, who hit the company with a subpoena about its policies on policing third-party content. The U.S. Court of Appeals for the Fifth Circuit reversed an injunction, which had blocked the suboena. Google settled the dispute in July.
In the Backpage case, Ferrer’s lawyers argued, a stay was necessary to give the D.C. Circuit time to consider “the First Amendment consequence of permitting Congress to use such investigatory demands as a tool of speech regulation.”
“The answer is of vital importance not only to Backpage.com, but to all online publishers of third party content because ‘whatever affects the rights of the parties here, affects all,’” Ferrer’s lawyers wrote.