With a brief respite just granted by Chief Justice John G. Roberts, Jr., an online publisher on Tuesday asked the Supreme Court to clarify that the First Amendment assures a right to newsgathering for those who put on the Internet content created by someone else. The application is here; the Chief Justice’s order is here.
A federal trial judge’s order to enforce a Senate panel’s broad subpoena to the chief executive of Backpage.com is now on hold until at least Friday, when a response is due from the investigating subcommittee, under the Chief Justice’s order.
Backpage, a major online publisher of what used to be called classified ads in print publications, has an “adult section” that has come under attack by law enforcement officials, who contend that the ads enable “sex trafficking” that violates various criminal laws. The site and its CEO, Carl Ferrer, have been fighting for more than a year with the Senate investigations subcommittee over demands for information on how it edits or screens ads submitted for its adult section.
In its application to the Supreme Court, Backpage contended that the issue at stake goes well beyond its own Internet activity.
“The last few years,” its lawyers told the Court, “have witnessed a tremendous growth of online publishers that host, among other things, content created by third parties. Unfortunately, this proliferation of diverse speakers online has been accompanied by the unsettling trend…[of] efforts by government officials to stifle the speech of unpopular online publishers by issuing extremely burdensome investigative demands designed to intimidate or chill their activities.”
Backpage added: “This issue applies to an ever-expanding array of services — from YouTube to Craigslist to Yelp — that increasingly play a major role in the national economy. As online publishers such as Google increasingly find themselves the target of government efforts to stifle unpopular speech they host, this Court’s guidance is necessary to clarify the burden the government must meet before it can obtain documents — especially those sought in scattershot fishing expeditions — that go to publishers’ core editorial functions.”
This case, the application added, offers the Court an opportunity to “bring much-needed clarity to the law regarding the scope of First Amendment protection that online publishers of third-party content enjoy in response to investigative demands that target their editorial functions.” In addition, the filing said, the case provides a chance for the Court to reconsider a 1972 ruling (Branzburg v. Hayes), which has led to widely varying interpretations by federal courts of whether the news media have a First Amendment right for newsgathering, and, if so, how far that reaches.
The Branzburg decision rejected a request to block a grand jury investigation into a Kentucky newspaper reporters’ stories about illegal drug activity, but a separate opinion in the case by the late Justice Lewis F. Powell, Jr., interpreted the ruling as indicating that the media may have a First Amendment right of some dimension to pursue news reporting techniques.
The Court, according to Backpage’s filing, has not had the opportunity to sort out the level of First Amendment protection for online publishers when they use their editorial judgment about screening, selectively publishing, or editing content created by third parties.
The Senate subcommittee on August 5 won a ruling in U.S. District Court by Judge Rosemary M. Collyer to enforce its subpoena. She ordered Backpage to submit the demanded editorial operations material within ten days. The U.S. Court of Appeals for the District of Columbia refused to block that order on September 2, pending an appeal by Backpage.
The Circuit Court said the ten-day deadlilhe set by Judge Collyer would run from the date of the Circuit Court order — thus indicating that Backpage had to comply with the subpoena by next Monday.
The request for a postponement was filed with Chief Justice Roberts, who handles emergency legal matters from the District of Columbia. His temporary order on Tuesday blocked Judge Collyer’s order pending the filing of a response by the Senate panel by noon this Friday, ” and until “further order” by Roberts or by the Court.
The Chief Justice has the authority to act on the subpoena challenge himself, or to refer it to the full Court. If the case is shared with the other Justices, it would take five votes to block the subpoena.