Backpage.com Sues Over Illinois Sheriff's Unconstitutional Bullying
With no legal authority to do so, Sheriff Tom Dart threatened to go after Visa and MasterCard if they did not cease doing business with Backpage.com.
The classified-advertisement site Backpage.com has filed a lawsuit against Sheriff Thomas Dart of Illinois' Cook County. Earlier this summer, Dart bullied credit card companies Visa and MasterCard into ceasing their business with the website, which Dart hopes to put out of business to gratify his own delusional White Knight complex. And if you think that's an unnecessarily biased way to put it, read on for the details of Dart's quixotic, seemingly obsessional crusade.
"For over six years, Sheriff Dart has pursued a campaign against online classified advertising websites—first Craigslist and then Backpage.com—demanding they shut down portions of their sites for adult-oriented ads posted by users," the lawsuit explains. "At every turn, Sheriff Dart has been stymied by the Constitution, federal law, and court decisions holding that such ads are protected speech and that websites are immune from state-law civil or criminal liability" under the federal Communications Decency Act (CDA). In his 2009 lawsuit against Craigslist, for instance, the U.S. District Court for the Northern District of Illinois summarily dismissed Dart's claim that the website was a public nuisance facilitating prostitution.
But Craigslist ultimately caved to government pressure and, in 2010, removed its "adult services" ad section. His work there complete, Dart shifted his focus to Backpage.com.
"Consistent with Backpage.com's longstanding efforts to preclude improper ads and assist law enforcement, it sought to work with Sheriff Dart's office on screening and security measures," the suit states. Dart requested that the site require credit cards for adult ads so their posters would be traceable—something the site had already long done.
In several subsequent letters and meetings, Dart requested the same thing; each time, Backpage explained that, yes, this was already its policy. Backpage also employs several mechanisms for users to flag ads they believe to contain illegal content, and utilizes a two-tiered (one automated, one human) filtering system to review ads. Using this process, the company "blocks or removes over a million ads per month," it states, "and immediately reports any ad that may concern child exploitation" to the National Center for Missing and Exploited Children.
But that wasn't enough for Dart, of course. After efforts to get federal legislation targeting Backpage.com failed, Dart said he started thinking "out of the box." If credit cards were required to purchase adult ads on Backpage, then by golly, he would see that no financial services company would allow their cards to be used on the site. And thus Dart began his campaign to scare Visa, MasterCard, and American Express into making it so.
On June 29, 2015, Dart sent letters to Visa and MasterCard's chief financial officers demanding they "defund sex trafficking," and stating that his letter "compels" them "to sever ties" with Backpage. Writing on his official Cook County Sheriff letterhead, Dart insisted Visa and MasterCard "immediately cease and desist from allowing your credit cards to be used to place ads" on Backpage.com. Dart continued by claiming that his office "objectively found" evidence that Backpage promotes child sex trafficking, and noting that the companies had a "legal duty" to help him fight this.
"The letters left no doubt about Sheriff Dart's demand, his threatened pressure and the consequences if the card associations did not accede," Backpage states in its lawsuit. Dart "made sure his threat was plain by citing statutes imposing criminal penalties for money laundering, allowing termination of a financial institution's status as an insured depository institution, and permitting investigations and enforcement actions."
American Express, Visa, and MasterCard had all allowed use of their cards for Backpage purchases from 2004-2015. Within two days of receiving Dart's letter, both Visa and Mastercard had terminated card services with the site. (American Express had done so several months prior.) A letter from Visa to Backpage explained that it could no longer process site transactions because the site was linked by U.S. law enforcement to "child prostitution and human trafficking."
"Because of Sheriff Dart's actions, Backpage.com is barred from credit card services of any of the three largest card companies or any acquiring banks or credit processing companies," the suit notes. "This affects not only adult escort ads but also other ads for dating, housing, services, trades, and sales of goods," of which Backpage sees about six million per month. The only remaining option for purchasing ads is via Bitcoin. For the time being, Backpage.com has stopped charging for ads, but this is not a sustainable solution, it says.
"If allowed to stand, Sheriff Dart's actions will eliminate an entire forum for online speech and millions of permissible and constitutionally protected posts in order to target a handful that may be unlawful but cannot be detected or blocked," claims Backpage. His actions "are grossly overbroad and are governed by no discernible legal standards," representing instead "an informal extralegal prior restraint of speech without due process" that violates the First and Fourteenth Amendments.
"Sheriff Dart's actions to cripple Backpage.com and all speech through the site are an especially pernicious form or prior restraint," the company alleges. "He has achieved his purpose through false accusations, innuendo, and coercion, whereas, if he had brought suit directly or Cook County had attempted to pass a law to shut down the website, Backpage.com would have had a fair opportunity to respond and defeat such efforts, given well-established law."
Over the past few years, three states (Washington, Tennessee, and New Jersey) passed laws targeting Backpage for criminal sanctions, and all three were stuck down by federal courts, which found them unconstitutional under the First Amendment and in violation of the CDA. Dart acknowleged that these decisions were justified under current laws but called the current laws "antiquated" and "nonsensical."
"Backpage.com has steadfastly maintained that censorship is not a solution to human trafficking or child exploitation, but rather that law enforcement and other authorities should work with websites to prevent, investigate, and prosecute criminal activity and rescue victims," it concludes in its lawsuit. The company is seeking a declaration that Dart's actions are unlawful and unconstitutional, an injunction requiring him to cease such actions and retract his letters, a preliminary injunction "returning the parties to status quo before the credit card companies precipitously terminated services," damages for lost revenue, and punitive damages "to provide punishment and as deterrence for Sheriff Dart's intentional conduct recklessly indifferent to protected rights."