The sheriff of Cook County, Illinois, home to Chicago and surrounding suburbs, violated the First Amendment rights of Backpage.com, a classified ad business, when he pressured major credit card companies to deny transactions between the company and its advertisers, the federal Seventh Circuit Court of Appeals has ruled. Circuit Judge Richard Posner’s November 30 ruling regarding Sheriff Thomas J. Dart’s efforts to block advertising for illegal sex-related products and services is a sweeping free speech opinion.
“The Sheriff of Cook County, Tom Dart, has embarked on a campaign intended to crush Backpage’s adult section — crush Backpage period, it seems — by demanding that firms such as Visa and Mastercard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution,” Posner wrote. “Visa and Mastercard bowed to pressure from Sheriff Dart and others by refusing to process transactions in which their credit cards are used to purchase any ads on Backpage, even those that advertise indisputably legal services.”
Dart’s ire is specifically aimed at the “adult” section of Backpage.com, which Posner’s opinion spelled out is “subdivided” into categories including escorts, body rubs, strippers and strip clubs, fetish activities, and phone sex services.
District Judge John J. Tharp, Jr., had denied Backpage’s motion for a preliminary injunction against Dart, reasoning that he was just exercising his own free speech rights by writing to Visa and Mastercard to express his disgust with the sexually-oriented advertising and alluding to the credit card companies’ potential liability under a federal money-laundering statute.
But Posner and the panel’s other two members, Circuit Judges Kenneth F. Ripple and Diane S. Sykes, concluded Dart was doing more than just expressing a personal opinion.
“While he has a First Amendment right to express his views about Backpage,” wrote Posner, citing a 2002 ruling from the Ninth Circuit Court of Appeals, “a public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment.”
Despite the careful wording of Dart’s letter, the Seventh Circuit panel perceived an implicit threat of a boycott and possible prosecution. Posner pointed out that if Backpage was engaged in unlawful activity, Dart could prosecute the organization directly. Dart had attempted to do that with Craigslist, but was rebuffed in 2009 by the district court in Dart v. Craigslist, Inc.
“Craigslist, perhaps anticipating Dart’s campaign against Backpage, shut down its adult section the following year,” Posner observed, “though adult ads can be found elsewhere on its website. The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues by scaring off its payments-service providers. The analogy is to killing a person by cutting off his oxygen supply rather than by shooting him. Still, if all the sheriff were doing to crush Backpage was done in his capacity as a private citizen rather than as a government official (and a powerful government official at that), he would be within his rights. But he is using the power of his office to threaten legal sanctions against the credit-card companies for facilitating future speech, and by doing so he is violating the First Amendment unless there is no constitutionally protected speech in the ads on Backpage’s website — and no one is claiming that.”
Posner asserted, “The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands.”
The credit card companies Dart contacted certainly felt threatened. Shortly after receiving the letter, both Visa and Mastercard cut off Backpage and informed Dart of their actions, which he hailed at a press conference and in a written release. Backpage was forced to make its ads free, forfeiting a major source of revenue, which led to this lawsuit.
The court concluded that the credit card companies “were victims of government coercion aimed at shutting up or shutting down Backpage’s adult section (more likely aimed at bankrupting Backpage — lest the ads that the sheriff doesn’t like simply migrate to other sections of the website), when it is unclear that Backpage is engaged in illegal activity, and if it is not then the credit card companies cannot be accomplices and should not be threatened by the sheriff and his staff.”
Posner rejected Dart’s argument that most of the sexually-related advertising on Backpage is illegal.
“Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.),” wrote Posner. “One ad in the category ‘dom & fetish’ is for the services of a ‘professional dominatrix’ — a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually. It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution.”
That paragraph includes Posner’s citation to several online reference sources spelling out the activities of professional dominatrixes. The entire opinion is a delight to read, as Posner’s indignation with the sheriff’s abuse of power shines through in the writing.
Backpage.com is represented by James C. Grant of Davis Wright Tremaine LLP in Seattle and Robert Corn-Revere and Ronald G. London from that firm’s Washington, DC, office. The court received amicus briefs from Ilya Shapiro on behalf of the Cato Institute, Reason Foundation, and DKT Liberty Project, and Wayne Giampietro on behalf of the Center for Democracy & Technology, the Electronic Frontier Foundation, and the Association of Alternative Newsmedia.