Backpage

Judge Grants Backpage.com Temporary Restraining Order Against Illinois Sheriff Tom Dart

"It appears that an oft-used tool for identifying lawbreakers will be lost if Backpage were to fold," writes federal judge.

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A quick update on the Backpage.com lawsuit against Cook County, Illinois, Sheriff Tom Dart, who threatened to target credit-card companies if they didn't stop doing business with the international web-ad platform. On Friday, U.S. District Judge John J. Tharp, Jr. granted the website's request for a temporary restraining order against Dart, noting in his decision that Backpage is "in essence, a publisher" and "has established a more-than-negligible likelihood of success on the merits of its claim that Dart's informal lobbying of the credit card companies violated the First Amendment."

"Backpage has also made a sufficient showing of irreparable harm," wrote Tharp of the lawsuit, filed in the U.S. District Court for the Northern District of Illinois Eastern Division. With it, Backpage's submitted "numerous exhibits that document longstanding efforts by Dart to force or pressure Backpage.com and Craigslist.com to abandon their 'adult' classifieds, through lawsuits, lobbying, and public pressure." More from Tharp's decision (provided to me by folks from Paul Hastings, one of the firms representing Backpage):

In arguing that it is likely to succeed on the merits, Backpage contends that Dart's actions constitute precisely the type of informal prior restraint condemned as a First Amendment violation in Bantam Books, Inc. v. Sullivan … In that case, the Supreme Court held that the informal but coercive notices (often followed up with visits from police officers) sent to distributors of books deemed "objectionable" by a state commission amounted to a system of informal censorship [and] violated the First Amendment rights of the publishers who sued to stop the interference.

On the other hand, Dart vigorously disputes Backpage's likelihood of success on the merits. Dart argues … (2) there is no First Amendment protection for the content at issue; and (3) Dart did not threaten the credit card companies and therefore the Bantam Books line of cases is not applicable to his conduct. … Clearly First Amendment protection does not extend to exhortations to illegal conduct— Dart's stated concern. E.g., United States v. Williams, 553 U.S. 285, 297 (2008) ("Offers to engage in illegal transactions are categorically excluded from First Amendment protection."). But here, there is no dispute that all of the advertisements on Backpage.com are affected; Backpage cannot collect its normal fees for even the most benign advertisements, and therefore will be unable to host any when the money runs out. Given that Dart sought to "defund" Backpage, not just shut down its adult sections, based wholly on the content of some ads, Dart cannot maintain that the First Amendment is not implicated by his actions, even if he were correct that none of Backpage's "escort ads" themselves are protected. (The Court need not decide.)

The only remaining question with respect to the plaintiff's likelihood of success on the merits is whether Backpage will be able to establish a First Amendment violation—that is, whether Dart's actions are the type of informal prior restraint that the Bantam Books line of cases prohibits. And, as the parties' oral arguments made clear, that involves two main questions: (1) whether Dart's letter constitutes a threat, and (2) whether the credit card companies involuntarily withdrew business from Backpage. The plaintiff has a better than negligible—but not certain— chance of proving that both answers are "yes."

Meanwhile, Dart "has made no argument, and has provided no evidence, that prostitution, trafficking, and sexual exploitation of minors will be reduced significantly reduced by Backpage's demise," Judge Tharp continued.

Indeed, it appears that an oft-used tool for identifying lawbreakers (by Dart and other law enforcement agencies) will be lost if Backpage were to fold… Dart contends that public interest is best served right now because "the public is able to use Backpage.com for free." Curious as it is for Dart to equate the public interest with more access to Backpage.com, the argument is specious, for the record suggests that Backpage is in jeopardy of going under as a result of Dart's tactics.

The ruling won't change much practically, but Dart is barred from further efforts to defund Backpage for the time being.  Perhaps more importantly, the judge seems more than somewhat persuaded by Backpage's claims. If so, the court would be in keeping with multiple past cases in which lawsuits or legislation against the site have been found unmerited or unconstitutional. Liz McDougall, Backpage's general counsel, called Tharp's opinion "an important reaffirmation of the critical role of the Internet in free speech" and "an emphatic reminder that government officials cannot undertake to destroy websites even when they disagree with hosted speech."

NEXT: Is there a reasonable expectation of privacy when you "pocket-dial" someone?

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  1. “Backpage has also made a sufficient showing of irreparable harm,” wrote Tharp of the lawsuit…

    It’s a dark day when courts start putting the convenience of politician-police behind the wants of civilians trying to make a profit.

    1. “Those profits are probably short term! which are the worst kind”

      Because everyone knows you get fat “long term” profits by handcuffing businesses/people from making any flexible decisions about P/L in the near term.

      The disincentive effect it would have on making any rapid changes in capital allocation will surely be a great boon to the economy. Because seriously, liberals really think this stuff through like *really hard and stuff*. Locking up liquidity is a surefire way to promote economic growth.

      1. “Those profits are probably short term! which are the worst kind”
        In one of Ambrose’s books, he refers to the ‘false prosperity’ of the 1920s. Bullshit.
        It may have been a bubble, but there were a lot of people enjoying prosperity they never had before.

        1. It’s false prosperity in their coercive, corrosive, regressive, parasitical little minds.

        2. while i’m not a market-historian, I’d niggle about that.
          (what ambrose book, btw? I’m not sure why a WWII historian would be the best for insight on the issue)

          but i don’t want to get into a tangential debate about market-rules or what makes ‘good regulation’ vs. bad regulation.

          suffice it to say that the left’s fascination with the “Short Term Profits!!=BAD!”-trope is something to paper-over their gaping ignorance of markets in general.

          i.e. they hate “profits”, writ large, and just focus on this ‘short term’ bullshit as a way of justifying taking bigger bites of any kind of transaction, anywhere, anytime.

          They will trot out a selected group of economists who say, according to their magical models, that “New, Magic-Taxes” could/might force companies to pay employees higher wages while accepting lower-overall profit margins..

          (and never mind the effect it would have on equity prices and the pensions of millions of americans)

          basically, its just a rhetorical game, entirely divorced from economic reality. and people in media will recite these claims as though they’re the “informed” ones who *really get this stuff*.

          1. according to their magical models

            You know who else had magical models?

            1. The director of The Craft (1996)?

            2. Ray Harryhausen?

            3. Jack Nicholson?

          2. Of course it’s bull shit.

            They can’t even tell you what constitutes a ‘fair’ short-term investment anyway. That’s how vacuous such a thought is.

            If you invest, say, in stocks in companies that are growing rapidly or happen to catch fire because of a new technology or whatever, aggressive investors (including day traders) tend to flip those stocks around collecting ‘short term’ profits a bit at a time until they amass the amounts they’re looking for. (Over (taxing or demonizing this is retarded. It’s just another way for the parasitical class to claim money that does not remotely belong to them; especially since most of us invest with after-tax dollars. Taxing investors on the risk they took is just another form of mob tactic racketeering.

            Over the long term, that can only be good, no? How is that bad in any way?

            And why are they discriminating against ‘medium term’ investing, eh?

            Moreover, like a conniving, dishonest wench like Hillary looks to pay her ‘fair share’ anyway.

            Please.

            1. You’re exactly right –

              the “short term” tax rates are already at the level of regular income. ~30-40% for most people/institutions. Claiming that people are somehow “taking advantage” of

              Her actual proposal is trying to take larger bites of an entirely new made-up category of “medium” term…. as though there is any logic to locking up investments of ALL KINDS in some kind of arbitrarily time-scale, lest the money get raped by the taxman for daring to have been invested above the so-called “Risk-Free” RoR.

              Oh, and I just love how this kind of thing must make financial managers lose their hair just thinking about it.

              Because any CFO who’s spent decades trying to manage a complex array of assets for an optimal tax-adjusted return is suddenly going to have every single assumption thrown out the window, because there’s no longer any clear definition of “long/short” cap-gains, but rather some muddy sliding scale over a number of years between 1-and-6. And every year that passes will change the rate at which existing assets might be exposed to a different tax liability. Oh, the fun of having to do that kind of work

          3. “(what ambrose book, btw? I’m not sure why a WWII historian would be the best for insight on the issue)”

            It was in the prologue to one, where he pointed out that the WWII draft-age kids tended toward poor nutrition (the depression) after the ‘false prosperity’ of the 20’s.
            My point is the general derision of *any* short-term gains by the left; the market is messy and out of control, and they don’t like it one bit.

            1. “”the general derision of *any* short-term gains by the left””

              Yep.

              And i actually think i recall the prologue cite you mention. Citizen Soldiers?

              1. “Citizen Soldiers?”
                That or “Band of Brothers”. If you read them back-to-back, you’ll find certain ‘similar’ passages.
                A friend was involved in the graphics dept of a local amusement park and got quite efficient at it; ‘never create when you can copy’.

                1. All of his WWII books were more or less cut-pasted from the transcription of soldier’s oral histories which his university (U. New Orleans) maintained an archive of.

                  This =

                  “He founded the Eisenhower Center at the University of New Orleans in 1989[14] serving as its director until 1994….. The Center’s first efforts, which Ambrose initiated, involved the collection of oral histories from World War II veterans about their experiences, particularly any participation in D-Day. By the time of publication of Ambrose’s D-Day, June 6, 1944: The Climactic Battle of World War II, in 1994, the Center had collected more than 1,200 oral histories.[16] Ambrose donated $150,000 to the Center in 1998 to foster additional efforts to collect oral histories from World War II veterans.[17]”

                  Citizen Soldiers, Band of Brothers, & D-Day books all came from those collected narratives, more or less. In most cases, he just added some boilerplate context, then slotted in X-person’s stories for color and effect.

                  They’re all great books, no doubt. But his writing M.O. for them was about as cookie-cutter as it gets.

                  I’ve heard his scholarly work is very good – his biographies of Nixon and Eisenhower (3-volume, and 2-volume, respectively) in particular.

                  1. Not griping about his skill as a writer; I’ve got several more of his books, including his one-volume “Eisenhower” and “Nixon, ’73-90”, both well worth the reads.
                    I’ve also seen excerpts from his debunking of the claim that the allies purposely starved 1m German POWs; he can get properly angry when appropriate.

      2. ‘Presidential contender Hillary Clinton announced a proposal Friday afternoon to raise capital gains taxes for assets that are held for less than six years by top-bracket payers as a way to try and encourage long-term investing, and grow the economy.’

        You have to kill the short-term to save the long-term.

        /shakes head.

        1. Nothing grows the economy like taxes. Leftoids are just so fucking smart.

          1. Its just a way for an unlikeable cuntbitch like her to play the populist card with the democrat masses, who in large part will never have capital gains anyway. And remember the number one rule of socialism: Socialism is for everyone else, not the socialist.

        2. I think its because the kind of companies Progressive Government loves best? are zero-growth cash-cows.

          They basically operate their businesses simply to finance their employee benefits plans. Anything left-over would be taxed so high that they should probably just buy-back their own shares. Which is what has been done with about a trillion $ in profits a year for the past few years. And naturally, they’re going to try and kill that too

          (of course the author of that piece is a guy who made billions flipping little companies to Big Companies in the dot com days, and now thinks Capitalism is like, bullshit man)

          1. “See? I made billions the wrong way! Don’t do what I did!”

            “Will you be returning your money to the people?”

            “Ha, ha! Wait, you’re serious? Oh. Right. You are. No.”

            1. I might add: Capitalism for me, not thee!

          2. Oh, god what profound illiteracy. Stock buybacks are just like dividends in the end, a way to take money that isn’t going to get a good rate of return and let the shareholders invest it elsewhere.

            The only alternative, in the long run, is for every profitable corporation to try to turn into a mega-conglomerate, after saturating their initial market, since distributing profits to shareholders is verbotten. Somehow I don’t think progressives would like that either.

            1. “Stock buybacks are just like dividends in the end”

              Well, they change the size and timing of tax-receipts for the government, for one.

              Dividends paid create a tax liability every time a shareholder receives them. Stock buybacks usually produce a commensurate increase in the value of the shares (based on the reduction of float), but no tax is paid on that added value until individuals sell their shares.

              (and even then the total tax will depend on the individual’s relative gains)

              While its a minor distinction, when (as noted) over a trillion $ is being spent on buybacks instead of* dividends, the government sits up and takes notice and starts to gripe that they’re not getting their cut.

              (*the idea that every $ spent on buybacks would otherwise be returned to shareholders ‘some other way’ is also specious, but that’s another story)

              Add to that the common rhetoric by braindead anti-capitalist lefty ‘financial’ journalists, where apparently every single shareholder is part of the 1% ‘super elite’ (rather than just millions of 401K investors)…. and they construe it as the Great Profit Robbery which is increasing Inequality

            2. Progressives don’t like much other than government ownership and government confiscation. They’re like Terminators. They can’t be reasoned with, they can’t be bargained with, they have no sympathy or pity, and they will NEVER EVER stop. Which is why they will have to BE stopped through some form of force at some point, or they will consume everything.

    2. OK, so, I’m glad the judge seems to be on the side of reining in Dart, here, but, I’m not quite sure what the remediative effort is as regards “restraining” him.

      I mean, functionally, no one has a “right” to have credit card companies process payments for them. Yes, the CC companies stopped because they got a threat from Dart, but it’s not like the judge ordering Dart to back down for now will necessarily cause the CC companies to start processing payments for Backpage again. And I’m thinking it’d be way beyond the purview of the court to order them to, if they don’t want to.

      I’m not even sure I’d fault them for it. Since there’s no guarantee Dart will lose, in the end, they might want to sit this one out until the trial is over.

  2. “an emphatic reminder that government officials cannot undertake to destroy websites even when they disagree with hosted speech.”

    Unfortunately, they “can.” They shouldn’t be able to, but they can. Fortunately in this case the judge did the right thing.

    1. Fortunately in this case the judge did the right thing.

      This is like that thought experiment, where an infinite number of gorillas mashing the keys on an infinite number of typewriters, one of them, would eventually produce Hamlet. It’s sort of like that with federal judges, but without all that infinity.

  3. If they want to stop ads for sex for money I suggest banning marriage announcements.

    1. If they want to stop sex-based ads for money, birth announcements should also be done away with.

  4. 1) whether Dart’s letter constitutes a threat, and (2) whether the credit card companies involuntarily withdrew business from Backpage.

    “Nice credit-card company you got here. It’d be shame if it were chewed up and spit out by the judicial system. Barring that, it’d be a shame if everyone thought you were facilitating prostitution. Totally not a threat though.”

  5. Why we were buying sex dolls and dressing them like men. Yeah, ok, whatever you say. Nudge wink saynomoah.

    http://www.newsweek.com/cia-sex-doll-russia-356997

  6. If it were me on the bench I would be asking Dart to demonstrate why it was any of his goddamned business, and asking his if he had silver each and every case in volving violence or theft in his jurisdiction.

    Which is doubtless a major reason it isn’t me on the bench.

  7. You guys…you think this backpage.com is so great? It’s just going on line?trolling for women to meet and have sex with. That seems to be part of our culture now: meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this, whatsoever.

      1. Damn, I had hoped you caught that I was directly quoting that idiot judge from the other case. I don’t really feel that way. Quite the opposite, in fact.

        1. next time link to the quote

          because we get too many genuinely-stupid trolls

          1. We do, at that.

        2. I don’t really feel that way. Quite the opposite, in fact.

          Then I retract my insult.

          Sorry, missed it.

          1. I thought the username was kind of a giveaway, myself.

            1. Not if you read enough to the lefty trolls who do a drive-by.

    1. Also no dancing or witchcraft.

      1. That’s where Whiny Jr and I differ. Just because I may prefer something steady instead of a series of one night stands, doesn’t mean I should be able to bar other consenting adults from doing that, much less use police power to stop it.

    2. I got the joke don’t worry. Francisco is trigger happy this morning.

  8. In my fantasies a liberty sympathetic billionaire targets Dart and destroys his political career in the next election with a deluge of money and opposition research making him a pariah forever. Then this billionaire takes out a series of ads warning people like this that they will be next if they try to pull this authoritarian crap. Heck if someone created an organization to do this kind of good work i would be first in line to donate.

    These authoritarian types are more vulnerable than they look. I suspect it wouldn’t take much to make an example of Tom Dart.

    1. Maybe that billionaire is Bruce Wayne, or Tony Stark. And maybe Dart gets a visit from a pissed off Batman, or iron Man.

      1. I’m enjoying this fantasy.

  9. Well, I see that the judge is still being polite, and not saying the obvious:

    That any communication from a law enforcement officer in their official capacity is a threat. It is backed up by the threat of violence. Because failure to obey any request by an LEO authorizes them to commit violence against you.

    The threat may be implied, but its there, and its real.

    1. ^^This should be taught in every civics class, if they teach such a class anymore.

    2. It gives me a little momentary scare each time I even receive a jury summons, or a request to donate money to the local police. A citizen doesn’t have to do something illegal to find themselves embroiled in a very negative life-changing, or even life-ending, experience.

    3. That may be true in reality, but not in that fantasyland we call a courtroom.

      I recall one case where a bus was stopped and searched and a man arrested for what was found in luggage. The man claimed coercion and was laughed at. Apparently three cops looming over you, stroking their guns like a woman strokes her favorite vibrator, asking for permission to search his belongings, is not coercion in the eyes of a white-bread judge.

  10. So, when does the FDIC get indicted for starting Operation Choke Point?

    1. Right after Libertopia happens.

    2. And we fire up the woodchippers to deal with the remains.

  11. Dart is far from the only Democrat pol who firmly believes adults have no right to make their own decisions involving sex and basically everything else in their lives. Lot’s of Republican pols on board to tell people what they may or may not do with their bodies. It’s only on the ‘basically everything else’ part that the two differ a little.

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