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Free Expression, Government Surveillance

Amicus Brief, Ferrer v. Permanent Subcommittee on Investigations

The subpoena issued by the Senate Permanent Subcommittee on Investigations imposes a significant burden on Mr. Ferrer’s First Amendment rights. Website operators like Mr. Ferrer create and implement content policies and moderation procedures that reflect their values and editorial views. These editorial judgments are protected by the First Amendment; the importance of shielding these editorial judgments from onerous scrutiny by the government is reflected in and reinforced by Section 230 of the Communications Act of 1934. This framework of protections for intermediaries, in turn, enables individual speakers to identify online services that will host their own First-Amendment protected speech. The Subcommittee’s invasive, burdensome inquiry into’s editorial practices creates an intense chilling effect, not only for Backpage but for any website operator seeking to define their own editorial viewpoint and moderation procedures for the third-party content that they host. The precedent set by this subpoena will create a chilling effect on operators’ willingness to host controversial but wholly protected speech, out of fear that doing so could subject them to similar, potentially ruinous, scrutiny.