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Shady Sex Ads May Have Some First Amendment Protection

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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A Senate panel has called the online advertising site Backpage.com a clearinghouse for sex trafficking in minors, and has subpoenaed its policies and records. The company says it’s a canary in the coal mine for government intrusion into the editorial decisions of journalists -- and has asked the Supreme Court to block the subpoena. Chief Justice John Roberts has stayed the subpoena to read briefs from the opposing parties. When he digs into the details, he may find that both sides are at least partly right.

The case began as an inquiry into Internet-driven sex trafficking of minors conducted by the Senate’s Permanent Subcommittee on Investigations, chaired by Rob Portman, an Ohio Republican (Claire McCaskill of Missouri is the ranking Democrat). The committee suspects that Backpage’s online classified service is used as a vehicle for such trafficking. It issued a broad subpoena to the company, which it subsequently narrowed and directed to Chief Executive Officer Carl Ferrer.

The particular focus of the inquiry is now whether and how Backpage may have edited or filtered certain ads to hide the fact that were being used for trafficking minors.

The focus matters partly because it goes to the question of whether Backpage is a knowing participant in facilitating sex trafficking or just a neutral service that’s being used by bad actors. But it also matters because it’s become the basis for Ferrer’s First Amendment defense to the subpoena.

The case came to the Supreme Court in a very unusual way. After Backpage refused to comply with the subpoena, Portman and McCaskill convinced the Senate to vote to hold the company in contempt of Congress -- the first such action in more than 20 years.

For better or worse, the Senate can’t just send officials to Backpage’s offices to confiscate the material. Once the Senate takes a contempt vote, it has to go to court to get an order enforcing its subpoena.

A federal district court judge in Washington issued the order. Ferrer asked the D.C. Circuit to review the decision -- and to stay the subpoena until it reaches a decision. The appeals court will hear the case, but it declined to stay the subpoena in the meantime. That amounted to a defeat for Backpage.

So Ferrer asked Chief Justice Roberts, the circuit justice for the D.C. Circuit, for an emergency stay of the subpoena until the D.C. Circuit rules. Roberts responded with a one-sentence order staying the subpoena until the Senate could file a brief of its own. Then Roberts, possibly after consulting the other justices, will rule on whether the stay should remain in place or be lifted.

The Senate’s position, which prevailed in the lower courts, is that there’s no reason Backpage shouldn’t be obligated to reveal its “business practices” when it comes to how it displays advertising. It says that Backpage can redact any individual information and tell the Senate if there are particular pieces of privileged information that need protecting. The congressional panel made no bones about asserting that “Backpage dominates the online market for commercial sex, and numerous instances of child sex trafficking have occurred through its website.”

Ferrer’s lawyers tell a different story. They say that the Senate is on a “fishing expedition” into the company’s “core editorial functions,” which should be protected by the First Amendment.

That may sound preposterous, but it isn’t, or at least not completely. Advertisements have a long history of being treated as free-speech in the Supreme Court’s jurisprudence. In the landmark 1964 New York Times v. Sullivan case, the original plaintiff -- the Montgomery, Alabama, commissioner of public affairs – sued the New York Times not because of anything written in the paper but because of a full-page ad that the paper ran in 1960. The ad was paid for by something called “the Committee to Defend Martin Luther King and the Struggle for Freedom in the South.” It contained some (relatively minor) inaccuracies in describing events in Montgomery; and those errors were part of Sullivan’s suit for libel.

The Supreme Court treated the advertisement as the Times’s own speech -- and used the case to establish a basic principle of press freedom.

Backpage is hardly the New York Times -- in fact it doesn’t publish content other than classified ads. But some, maybe many of those ads are still subject to full First Amendment protection.

Speech proposing commercial transactions, including advertisements, is sometimes treated by the courts as deserving only a lower standard of First Amendment protection.

That may be the case for some ads that Backpage runs -- but not for all of them.

Community groups, for example, advertise on the site; and they typically aren’t offering anything for sale. Clicking on just a few these ads immediately reveals speech that’s clearly entitled to full First Amendment protection, such as a “Trump v. Hillary poll” that I found within seconds.

Just because Backpage has First Amendment rights, it’s not automatic that it can’t be made subject to subpoena to ask about potential criminal conduct occurring on the site. But it may be that specificity and probable cause would be required to avoid an open-ended inquiry into editorial practices.

The upshot is that Backpage could be both a vector for crime and also simultaneously a protected part of the free press. If that turns out to be true, the Supreme Court should stay the subpoena until the D.C. Circuit can issue a full opinion and the justices can decide whether to review it.

The Senate subcommittee isn’t going anywhere, and for the moment, neither is Backpage. It’s worth taking the extra time to make sure the Senate is respecting free-speech rights before making the company disclose its editorial practices.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net