Senate Panel Says Backpage Has 'No First Right Amendment' Basis to Ignore Subpoena
Backpage.com CEO Carl Ferrer, who has avoided handing over documents in a congressional inquiry into illegal online sex trafficking, "has no First Amendment right to ignore a subpoena for documents" about the classified online advertiser's business practices and should be…
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denied a stay, said (in Pacer) the Senate Permanent Subcommittee on Investigations Friday in a filing and addendum with the U.S. Court of Appeals for the D.C. Circuit. The Senate panel has been tussling with Backpage for more than year to get documents about methods the company uses to screen out illegal sex trafficking on its website. After a U.S. District Court judge recently ordered Backpage to hand over documents, enforcing the panel's Oct. 1 subpoena, the company appealed to the D.C. Circuit, saying the subpoena endangered its First Amendment rights. The D.C. Circuit issued an administrative stay Aug. 12 temporarily blocking the subpoena without ruling on the merits of the case (see 1608170007). In its response in D.C. Circuit docket 16-5232, which was due Friday, the Senate panel said Ferrer has identified his First Amendment interests only "in sweeping generalities" and hasn't shown they outweigh the government's interests. "Merely affixing the 'editorial' label to Backpage's business practices does not imbue them with constitutional protection," it said. "In any case, evidence suggests ... that Backpage's editing practices -- for example, editing out incriminating material from advertisements for illegal transactions -- enjoys no constitutional protection." The panel said Ferrer's chances of prevailing on appeal are "remote." The CEO also hasn't established "any actual and non-theoretical irreparable injury likely to result" from producing the documents, the panel's response said. If the subpoena isn't enforced, it would hamper the panel's ability to complete its investigation and undermine the public interest, the filing said. Lawyers for Backpage didn't comment.