Wednesday, September 7, 2016 is Challenged on Two Fronts in Supreme Court | Supreme Court Brief is Challenged on Two Fronts in Supreme Court | Supreme Court Brief
by Marcia Coyle
In the span of one week,, the national online classified ad website, has found itself in the U.S. Supreme Court both as an applicant—challenging a U.S. Senate subpoena for business information—and as a target. At the heart of both cases: sex trafficking.
The two cases—Doe v. and Ferrer v. Senate Permanent Subcommittee on Investigations—involve very different legal questions. But they both carry potentially significant implications for internet content providers in particular and, more largely, for the digital economy.
The Doe petition was filed on Aug. 31 by John Montgomery and Douglas Hallward-Driemeier of Ropes & Gray and asks the justices to interpret a provision, Section 230, of the Communications Decency Act of 1996.
Congress attempted through the Communications Decency Act to regulate access to indecent or obscene content on the Internet. Section 230 of the act says: “[N]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, internet service providers that host content by third-party users are protected from liability for claims that treat them as traditional publishers.
Montgomery and Hallward-Driemeier represent three child sex-trafficking victims from the New England area who, beginning at age 15, were illegally trafficked for sex through, according to their petition.
To hold Backpage responsible for the girls' physical and psychological injuries, they sued under the federal Trafficking Victims Protection Act of 2000 and the Massachusetts Anti-Trafficking Act of 2010. They alleged Backpage knowingly profited from the sexual exploitation of children by intentionally creating an online marketplace to facilitate trafficking.
A trial judge dismissed the suit, concluding that Section 230 barred the claims under the federal and state laws. The U.S. Court of Appeals for the First Circuit upheld that ruling in March.
Montgomery and Hallward-Driemeier argue the First Circuit decision conflicts with decisions of the Ninth Circuit and a 2015 Washington state Supreme Court decision in a nearly identical case.
"When the Communications Decency Act was enacted 20 years ago to protect the development of the internet, Congress surely did not intend to shield serious criminal activity from liability under statutes enacted subsequently by Congress to protect victims of child sex trafficking,” Montgomery said. "We are hopeful that the Supreme Court will correct this erroneous interpretation of the law, and restore the opportunity of the victims to demonstrate that is liable for aiding and participating in child sex trafficking.”
The Institute to Address Criminal Sexual Exploitation at Villanova University Charles Widger School of Law notes in a policy paper: "Many convicted sex traffickers have advertised their victims as available for sex on Backpage, some as many as 300 times, resulting in 10-12 transactions daily."

In early cases interpreting Section 230 of the Communications Decency Act, the paper also notes, courts characterized Section 230 immunity as “broad” and “robust,” “immunizing interactive computer services from liability for information that originates with third parties.” That approach, internet freedom groups argued, was necessary to help foster and maintain the “diverse, expansive internet we know today.”
But the Villanova institute says courts more recently have departed from this broad concept of immunity. Those judges have concluded the Communications Decency Act’s text does not “declare a general immunity from liability from third-party content,” but instead requires a more narrow interpretation.
No response has been filed yet in the Doe case, which is likely to be ready for the justices' first look in late fall.
In the second case, turned to the Supreme Court on Sept. 7 seeking an immediate stay of a trial judge’s order that requires the company to respond to a U.S. Senate subcommittee’s subpoena for documents about how Backpage policies third-party content.
Chief Justice John Roberts Jr. issued the stay pending a response from the Senate Homeland Security and Governmental Affairs' permanent subcommittee on investigations by noon Sept. 9 or until further order by him or the full court.
The Senate subcommittee is investigating sex trafficking. In March, the full Senate voted unanimously to hold Backpage in civil contempt for refusing to comply with the subpoena. A D.C. Circuit panel temporarily halted the district court order but dissolved its stay on Sept. 2. The appeals court gave Backpage 10 days to comply.
First Amendment litigator Robert Corn-Revere of Davis Wright Tremaine represents Backpage and its chief executive, Carl Ferrer, in the high court. He argues the Senate subpoena violates Ferrer's First Amendment rights.
"This case presents a question of exceptional nationwide importance involving the protection the First Amendment provides to online publishers of third-party content when they engage in core editorial functions," Corn-Revere told Roberts.
The subcommittee, along with other governmental actors, Corn-Revere wrote, "asks the judiciary to approve the use of subpoena power as a bludgeon to burden or restrict editorial policies of which [the subcommittee] disapproves." Backpage has already produced more than 16,000 pages of documents, he said.

Contact Marcia Coyle at On Twitter: @MarciaCoyle.

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