Supreme Court Lifts Stay On Senate Enforcement Of Subpoena In Backpage.com

Yesterday, I testified about the subpoena power of Congress under Article I and briefly discussed the recent free speech challenge to the Senate subpoena issued against Backpage.com. I mentioned in the hearing that the district court had issued a sweeping reaffirmation of congressional subpoena authority, but that Chief Justice John Roberts had issued a stay. Now, the Supreme Court denied the appeal. The decision further strengthens the case of the House Science Committee.

In the hearing, I explained that it is unlikely that the public interest groups could prevail on a blanket refusal to comply with a congressional subpoena. There is no threshold immunity for such organizations recognized in past Supreme Court cases. The ubiquitous character of not-for-profit corporations makes any threshold barrier impracticable. There is a plethora of such groups set up by advocates from industry, academics, and public interest areas. Some could easily be viewed as part of a conspiracy or underlying effort to violate federal laws, as was the case with certain tobacco industry groups. Indeed, tobacco groups were subject to subpoenas to uncover the identities and activities of their sponsors and contributors. This included both hearings in the House as well as federal investigations and other litigation.

Such demands can clearly pose high costs for the political system. The scope of the demand on public interest groups could raise specific concerns over the chilling effect on free speech and association. To be sure, there are cases where allegations necessitate the demand for communications made by not-for-profit corporations. It is for that reason that I encouraged both the attorneys general and Congress to minimize the investigation of academics and public interest groups in this controversy.

The district court rejected the same arguments raised in this controversy in Senate Permanent Subcom. On Investigations v. Ferrer, where the Senate Committee issued a production order to Carl Ferrer, Chief Executive Officer of Backpage.com, an online website for classified ads. The order required the disclosure of information related to users as part of an investigation into the use of the Internet for illegal sex trafficking. The court rejected the challenge on the basis of the authorization of Committee, the scope of the order, and the free speech objections. The court rejected what it viewed as absolute claims under the first amendment and noted that “enforcement of the subpoena in the instant case does not impose a content-based restriction on any protected activity.

Now, the U.S. Supreme Court has denied an appeal from Backpage.com, a classified advertising website.