WASHINGTON • The United States Senate and the online advertising site Backpage.com are headed for a legal showdown, after a Senate committee voted unanimously Wednesday to hold the site in civil contempt for not cooperating with a probe into how it screens sex ads for illegal trafficking of minors.
If approved by the Senate — highly likely given the 15-0 vote in the Senate Homeland Security and Governmental Affairs Committee — it would be the first civil contempt declaration by the Senate in more than 20 years, according to its sponsors, Sens. Claire McCaskill, D-Mo., and Rob Portman, R-Ohio.
Portman called the action necessary because of Backpage's refusal to cooperate with his and McCaskill's investigation into sex trafficking of children.
"I really appreciate Sen. Portman's calm resolve on this because it is an antidote to how damned mad I am, and everyone should be mad," McCaskill said shortly before the vote was taken. "This is the height of arrogance and the height of thumbing one's nose at our laws in this country."
A lawyer for Backpage said the company welcomes the contempt citation, and that the company has been for months calling on McCaskill and Portman for a legal test of Congress's authority to probe the actions of a company that believes it has First Amendment protections.
"Backpage welcomes the decision," said Steve Ross, a lawyer for the prominent Washington law firm, Akin Gump Strauss Hauer and Feld LLP. In a statement sent to the Post-Dispatch, he said a civil action in court was was "the precise course of action the company has been urging upon the subcommittee for eight months."
McCaskill and Portman allege that Backpage routinely allows the advertising of sex with minors on its site, and they have asked for the company' to disclose their policies to prevent that. The company refused to cooperate with their investigative subcommittee, setting off an unusually harsh exhange in which another lawyer for Backpage - Liz McDougall - last year accused McCaskill and Portman of engaging in the same tactics of the Cold War era Sen. Joe McCarthy of Wisconsin.
Ross said that the two sides "have been in disagreement regarding both the applicability of the 1st Amendment to the subcommittee's efforts to require production of documents from an online publisher of third party advertisements and the relevance of such records to the work of the subcommittee."
He said the company has been asking McCaskill and Portman's investigative committee for months for a judicial review of its subpoena powers.
"We welcome the subcommittee's decision to follow the course we have been urging," Ross said.
The decision, if accepted by the full Senate, is likely to escalate prominence of the probe. Rhetoric has already gotten hot on the disagreement. And even strict 1st Amendment constitutionalists like Sen. Rand Paul, R-Ky., voted for the civil contempt citation.
McCaskill, visibly angry, said that "today on Backpage, children are being trafficked for sex," and she decried "the notion that the company can call Sen. Portman and me names and try to smear our reputations and hide behind the 1st Amendment."
Backpage has been an aggressive litigator on First Amendment grounds. Late last year it filed a lawsuit to prevent the Justice Department from enforcing a law sponsored by Rep. Ann Wagner, R-Ballwin, and Sen. Mark Kirk, R-Ill., aimed at curbed advertising of minors for sex.
Congress in 1978 gave the U.S. District Court for the District of Columbia jurisdiction to preside over a civil action to enforce compliance with a Senate subpoena. The court can impose sanctions if a defendant does not comply with a Senate order or subpoena.
According to a memo prepared for Portman and McCaskill, the last time this procedure was used was in 1995 during the probe of Bill and Hillary Clinton and associates in the Whitewater real estate deal in Arkansas.