Backpage.com is Challenged on Two Fronts in Supreme Court | Supreme Court Brief
by Marcia Coyle
In the span of one week,
Backpage.com, 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. Backpage.com 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 Backpage.com,
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 Backpage.com 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, Backpage.com 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.
