Supreme Court Grants Temporary Stay in Backpage Senate Subpoena Litigation

I recently wrote about the Senate civil enforcement action seeking to enforce a subpoena of Backpage.com records issued by the Permanent Subcommittee on Investigations (PSI). Backpage has been a target of the subcommittee’s investigation allegations of online sex trafficking. Backpage objects to the subpoena on numerous civil liberties and procedural fairness grounds. While I have been skeptical of the strength of Backpage’s arguments in this case, this case is an important milestone in judicial enforcement of congressional prerogatives in the face of complaints about congressional due process. The dispute also raises issues of congressional, rather than executive, surveillance of online activity.

At the time of my previous post, the DC Circuit had just granted an administrative stay relieving Backpage of the obligation to comply with PSI’s subpoena during the initial appeal phase. Last Friday, a divided panel of the DC Circuit dissolved the administrative stay and denied Backpage CEO Carl Ferrer’s emergency motion for a stay pending appeal.

Ferrer immediately applied to Chief Justice Roberts for an immediate stay and stay pending appeal of the order to comply with PSI’s subpoena. The main thrust of Ferrer’s argument is that production of documents in violation of the First Amendment would constitute irreparable injury warranting a stay. Late Tuesday, the Chief Justice stayed the district court’s order to comply with the PSI subpoena pending receipt of PSI’s response, due Friday, September 9, 2016.  Before the Supreme Court, the case is styled Ferrer v. Senate Permanent Subcommittee on Investigations.

It will be interesting to see whether the Supreme Court makes any substantive First Amendment or congressional oversight power rulings on its path to disposition of the matter. 

About the Author(s)

Andy Wright

Professor at Savannah Law School, Former Associate Counsel to the President in the White House Counsel’s Office Follow him on Twitter (@AndyMcCanse).