The First Amendment has been good, really good to the online classified ads portal Backpage.com. In 2015, the US Constitution helped Backpage dodge a lawsuit from victims of sex trafficking. What’s more, a federal judge invoked the First Amendment and crucified an Illinois sheriff—who labeled Backpage a “sex trafficking industry profiteer”—because the sheriff coerced Visa and Mastercard to refrain from processing payments to the site. The judge said Cook County Sheriff Thomas Dart’s anti-Backpage lobbying amounted to “an informal extralegal prior restraint of speech” because Dart’s actions were threatening the site’s financial survival.
But the legal troubles didn’t end there for Backpage, which The New York Times had labeled “the leading site for trafficking of women and girls in the United States.”
Thirteen months ago, the Senate Permanent Subcommittee on Investigations, which is examining sex trafficking on the Internet, subpoenaed (PDF) Carl Ferrer, Backpage’s chief executive officer. But Ferrer, citing the First Amendment, has largely refused to comply with the subpoena—which essentially demands to know everything about the company’s business model and profits, including how it screens ads. That screening aspect of the subpoena are similar to the one Mississippi Attorney General Jim Hood issued to Google about its polices of policing third-party content. In July, however, Hood and Google settled their dispute about the subpoena, which read like a page from the anti-piracy playbook of the Motion Picture Association of America.
Meanwhile, in the Backpage brouhaha, one part of the 13-page Congressional subpoena requires Backpage to disclose “All documents relating to the use of a Tor browser, or any other anonymizing Internet browser on the Onion Network, to post …