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Backpage.com Wins First Amendment Victory Against Censorious Sheriff

A federal appeals court tells Tom Dart to stop threatening payment processors that do business with the classified-ad site.

Cook County Sheriff's OfficeCook County Sheriff's OfficeYesterday a federal appeals court ordered an injunction aimed at preventing Cook County, Illinois, Sheriff Tom Dart from using his official position to discourage credit card companies from doing business with the classified-ad site Backpage.com. Last summer Visa and MasterCard severed their ties to Backpage after Dart sent them a letter suggesting that processing payments for the site made them complicit in sex trafficking and money laundering. After a federal judge rejected Backpage's request for a preliminary injunction, the company appealed to the U.S. Court of Appeals for the 7th Circuit, which concluded that Dart's campaign against Backpage violates the First Amendment. In a ruling by Richard Posner, a three-judge panel instructed U.S. District Judge John Tharp to issue the following injunction:

Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com.

Dart argued that he was merely exercising his own First Amendment rights by expressing his distaste for Backpage's "adult" section, which he says facilitates underage prostitution and other illegal activities. The 7th Circuit did not buy that defense. "While he has a First Amendment right to express his views about Backpage," Posner writes, "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."

Posner notes that Dart wrote his June 29 letter to Visa and MasterCard on official stationery "as the Sheriff of Cook County," asked them to "immediately cease and desist" from processing payments for Backpage ads, accused them of "willfully play[ing] a central role in an industry that reaps its cash from the victimization of women and girls across the world," mentioned the "legal duty" of financial institutions to file "suspicious activity reports" in "cases of human trafficking and sexual exploitation of minors," cited the federal money laundering statute, and requested "contact information for an individual within your organization that I can work with on this issue." After Visa and MasterCard immediately complied with Dart's "request" that they "cease and desist" from doing business with Backpage, his office issued a triumphant press release under the headline "Sheriff Dart's Demand to Defund Sex Trafficking Compels Visa and MasterCard to Sever Ties with Backpage.com."

Posner concludes that "Visa and MasterCard 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)." Under the guise of expressing his own opinions, Posner says, Dart "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. 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."

More on Dart's crusade against Backpage here.

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  • Fist of Etiquette||

    Dart argued that he was merely exercising his own First Amendment rights by expressing his distaste for Backpage's "adult" section...

    It's free speech all the way down.

    Surely Mastercard has attorneys who could inform them that this thing (I would imagine) would have to come from the feds and not some sheriff.

  • Notorious UGCC||

    Assuming Mastercard was interested in spending lots of time and money fighting a government official about processing payments to one particular company, thereby risking legal retaliation and the public-relations damage of "enabling sex trafficking."

  • Notorious UGCC||

    Imagine the headlines - "big credit card company raises technical quibbles so it can keep making money off sex trafficking."

  • Almanian's Rusty Woodchipper||

    Eddie - tell us again, when did you stop beating your wife?

  • Notorious UGCC||

    Uh, what's your point?

  • MSimon||

    .

  • Notorious UGCC||

    Whatever, dude.

  • Notorious UGCC||

    Wait, I got it - that was a "point!"

  • Scarecrow & WoodChipper Repair||

    I thought your brain had gone full stop for a moment there.

  • Notorious UGCC||

    Sometimes it freezes, but all I have to do is turn it off and turn it on again.

  • Scarecrow & WoodChipper Repair||

    Whooooosh!

  • Hicks||

    You are a riot!
    Actually nice to see positive news instead of reading about the cops shooting some 6 yo autistic boy 9 times for twitching, or shoots a NC man 6 times in the back for demanding a warrant at 3:30 am in the morning.The case was received by our SBI, whose inability to distinguish mud from blood put a man on death row for ~15 years.

    (Friends version)
    (http://www.fayobserver.com/ news/crime_courts/ harnett-deputy-shooting-was-cold-blooded-murder -roommate-says/ article_a9bcc787-f904-5b41-8642-6c2a8a6037c1.html)

    They now claim the victim originally demanded a warrant, but changed mind after detective called. When cops arrived, he opened door to tell cops they couldn't search without a warrant, and slammed door to on officers foot. Cop went into house to arrest victim for assault. Victim was sprayed with pepper, became violent forcing use of taser for "pain compliance". While one cop held him down with taser, other cop shot him in back six times.

    Guy screwed up by opening the door, if he did. Expect the autopsy to find enough THC to cause psychotic episodes which caused the life-threatening actions. They claim there were no video recordings, which seems odd.

    I live 50 miles from the place, don't know the guy. Could be racist liberal jerk for all I know, but he didn't deserve to get shot for saying "Get a Warrant" , and he deserves a decent investigation.

    They set up a GoFund to help bury the guy, and got 25 visitors and $1700 donations.

  • Illocust||

    I think MasterCard realizes getting into a fight with the sheriff of New York isn't worth it for them. He can screw them over in a lot of ways.

  • Jerryskids||

    MasterCard is a pretty big and powerful company - I suspect if the sheriff were to pay them a visit he would be rather nervous about their size and power. Might even be in fear for his life.

  • dantheserene||

    And I think we all know how those stories end.

  • Fist of Etiquette||

    Chi-town.

  • Je suis Woodchipper||

    all those "butt dart" jokes finally caused ol' Tom to snap.

  • Crusty Juggler||

    Way to go, Posner! Sheriff Dart was about to end prostitution for good and you just had to go destroy all of his hard work.

  • Notorious UGCC||

    Dart could dismiss any First Amendment concerns by quoting Posner and saying, "The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense."

  • Notorious UGCC||

    For afficionados of the First Amendment, Dart was practicing "prior restraint" - even the authors of the Sedition Act would say that's a bridge too far.

  • ||

    Do you think the judge who ruled against him was unaware of the documents he had submitted to Yale Law Journal?

  • Notorious UGCC||

    Huh?

    The judge is aware - hopefully others will be too.

  • Jordan||

    Yeah, Posner is a fucking idiot, but at least he got this one right.

  • Notorious UGCC||

    He got it right because he was enforcing one of the doctrines the Supreme Court actually got right - the strong presumption against prior restraints. This doctrine, in turn, is based on the historical understanding of the First Amendment - an understanding shared by both supporters and opponents of broad free-speech protections in the founding generation itself. *Even assuming* that a periodical publishes stuff that the government can suppress, the government has to wait until the stuff actually gets published, and *then* prosecute. They can't attack a periodical because they might publish illegal stuff in the future.

    Posner's opinion affirms this by quoting one of the 7th Circuit's precedents: "Threatening penalties for future speech goes by the name of 'prior restraint,' and a prior restraint is the quintessential First Amendment violation." (p. 12)

    But why is prior restraint a quintessential First Amendment violation? Because that's the *minimal historical meaning* of the amendment, accepted even by those Founders who otherwise advocated broad censorship.

    But if it's "nonsense" to be governed by this musty old Constitution, then why can't Dart simply say that Times Have Changed, and in the modern era "society" has agreed that the government needs broad tools to deal with the Scourge of Sex Trafficking?

  • Alice Bowie||

    Yahoo !!!

    At least now the regular guy can hire the local talent on his credit card.

  • Almanian's Rusty Woodchipper||

    "Well, cash, I suppose. It's not tax deductible, is it?" - undercover Jack Burton

  • Conchfritters||

    This is gonna take crackerjack timing, Wang.

  • ||

    So uh, anyone use backpages to get a hooker? Asking for a friend.

  • MSimon||

    Crimson flames....

  • MSimon||

    But corporations are not people - Lefty Derper

  • Rt. Hon. Judge Woodrow Chipper||

    And the biggest corporation of all is government.

  • Ken Shultz||

    Social conservatism isn't dead. They just call themselves progressives now.

    Sure, the new breed of social conservative isn't as much about bashing gays as the old brand used to be, but being a socially conservative, anti First Amendment prude still smells the same--even if it isn't done in the name of Jesus.

  • Notorious UGCC||

    I guess the difference is that all they're trying to "conserve" is their control of cultural institutions like campuses and the media.

    And they are also trying to revolutionize those parts of society which have previously resisted their ministrations.

    And they're not even *pretending* that they want to conserve the constitution - being bound by that old document is "ridiculous."

  • Ken Shultz||

    Just like the social conservatives of old, they're all about abusing our rights to create safe spaces for children.

    And they want to treat us all like children for our own good.

  • psCargile||

    I thought the only people putting out ads for sex services were cops looking to entrap.

  • Alan@.4||

    Seems as if Cook County is a very hard learner.

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