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SCOTUS Won't Hear Illinois Sheriff's Appeal of Order to Stop Threatening Credit Card Companies for Working With Backpage

Visa and Mastercard had ceased serving the site under threat of sanction from the Illinois sheriff.

Michael Tercha/MCT/NewscomMichael Tercha/MCT/NewscomIt looks like Judge Richard Posner's ruling will stand in Backpage's lawsuit against Cook County Sheriff Tom Dart. That means the classified-advertising website can keep doing business with Visa and Mastercard, which had temporarily stopped serving the site under threat of sanction from the Illinois sheriff.

On October 3, the Supreme Court announced that it wouldn't hear Sheriff Dart's appeal of Posner's decision for the U.S. Court of Appeals for the 7th Circuit. That decision (which cited the Reason Foundation and Cato Institute) held that "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."

Last month, the Supreme Court also declined an appeal from Backpage Chief Executive Officer Carl Ferrer related to subpoenas from a U.S. Senate subcommittee. The committee, led by Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Missouri), is conducting its own crusade against Backpage.com, which it claims facilitates sex trafficking. In August, U.S. District Judge Rosemary Collyer denied Backpage's motion to stay enforcement of the subpoenas, which demand various information about Backpage's business practices, and Backpage appealed to the Supreme Court.

Chief Justice John Roberts initially issued a halt on the district court's decision. But on September 13, SCOTUS issued an order that said only this: "The application for stay, presented to The Chief Justice and by him referred to the Court, is denied. The order heretofore entered by The Chief Justice is vacated. Justice Alito took no part in the consideration or decision of this application."

George Washington University law professor Jonathan Turley called the Supreme Court's decision not to consider the Backpage CEO's appeal "a sweeping reaffirmation of congressional subpoena authority."

Backpage and Ferrer had launched "a broad-scale constitutional attack on the Senate subpoena," as Reuters legal editor Alison Frankel described it. After losing on those grounds, they were told by the government that was their one shot at protecting any corporate communications. Correspondence between Backpage lawyers and corporate officials must be turned over to the subcommittee, as lawyers had not asserted attorney-client privilege or prepared a log of protected documents when contesting the Senate's orders, so they no longer had a right to expect any such privileges. On September 16, Judge Collyer agreed, ordering Backpage to turn over the documents by October 10.

"One broader worry is how all of this might erode Section 230—and alter the internet," noted Bloomberg Businessweek. Santa Clara University School law professor Eric Goldman told Bloomberg: "We're seeing some judges who are just so concerned about harm to victims online that they'll twist law in whatever direction it needs to be twisted."

Photo Credit: Michael Tercha/MCT/Newscom

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • tarran||

    Miss Nolan-Brown, why do alt-text at all if you are going to just phone it in?

    We have standards here. :)

  • SugarFree||

    "And then I stack the other clown on top, like this. I call it a 'Honka-Honka.'"

  • tarran||

    ^^^ THIS IS WHAT ALT-TEXT SHOULD BE LIKE!!!!!

  • SugarFree||

    I've offered to write alt-texts for them before and gotten the lonely sound of crickets as the only reply.

  • WTF||

    They don't know what they're missing. It's a loss for us all.

  • Citizen X||

    I think they know damn well what they're missing.

  • Chipper Morning Wood||

    That is pretty tame as far as SugarFree alt-text goes. I was expecting something along the lines of:

    "And as I looked into the sex trafficking victim's anus, there they were: the credit card receipts we were looking for, all nicely folded inside a used onigiri wrapper."

  • Ted S.||

    I thought he was talking about the size of his dick.

  • BakedPenguin||

    "Sheriff Dart describing the penis of the rent-boy he bought on Backpage. Numerous times."

  • Crusty Juggler||

    My contribution:

    "I'm getting rid of all my furniture. All of it. And I'm going to build these different levels, with steps, and it will all be carpeted with a lot of pillows. You know, like ancient Egypt."

  • Fist of Etiquette||

    That was the bet.

  • Diane Reynolds (Paul.)||

    No, I'm not gonna do it now, so the bet's off.

  • Chipper Morning Wood||

    That does describe a chinchilla cage rather accurately Crusty.

  • Citizen X||

    "My poopoo was THIS big, but then the potty eated it."

  • Crusty Juggler||

    I laughed and dribbled coffee on my white shirt. Thank you.

  • Citizen X||

    These masturbation euphemisms are getting pretty graphic.

  • ||

    They should just take the Clinton defense then they can ignore the subpoena.

  • WTF||

    Just go ahead and delete the records. Hillary did, and there were no consequences at all!

  • Diane Reynolds (Paul.)||

    Just go ahead and delete the records. Hillary did

    With the FBI's help.

  • Jerryskids||

    Well what the hell good is it to have a gun and a badge if you can't go around telling people "I am the law!" and making them do whatever you want?

  • tarran||

    Apparently the badge is the gateway to the most incredible, mind-blowing sex you can imagine or experience. You just have to kill a guy to experience it.

  • Hamster of Doom||

    They're making Horcruxes. Soon, the world will be theirs.

  • Pan Zagloba||

    I was gonna say Larry David but Seinfeld was like 20 years ago...

  • Glide||

    I assume this statement must be delivered in a Stallone impression?

  • Je suis Woodchipper||

    did not assert client-attorney privilege??

  • A Cynic's Guide to Zen||

    "From Absolute to Affirmative; Why having nothing to hide is the least of your worries"

    Out now, in green dragon-themed taverns everywhere...

  • WTF||

    Not according to the actual constitution, just according to the imaginary FYTW clause.

  • ||

    Living document! Emanations!! Penumbras!!! Social Contract!!1!

  • Jgalt1975||

    I hate to break it to you, but there's no right to attorney-client privilege in the U.S. Constitution. (Source: I am a lawyer.)

  • A Cynic's Guide to Zen||

    Gandalf: "Is it secret, is it safe?"
    Frodo: "No. Chaffetz subpoenaed us this morning."

  • R C Dean||

    In response to a subpoena, that's exactly the way it works.

    You respond like this:

    (a) Here's the documents you requested that are not privileged.
    (b) We are asserting the privilege on the documents listed below, which would otherwise be subject to the subpoena.

    Then, whoever issued the privilege can challenge your assertion, if they want, and a judge looks it over "in camera" and decides which documents are privileged.

    If you withhold documents from a subpoena, you have violated the subpoena. If you don't assert the privilege, and list what it covers, then you have violated the subpoena by not doing so.

  • tarran||

    RC Dean, I am contemplating a complaint to the bar in your state demanding your law liscence be revoked, since this answer would obviously get no points on the bar exam.

    You completely left out the most important criteria: whether the respondent is Hillary Clinton or not.

  • R C Dean||

    *Hangs head in shame*

    Its a fair cop, guv.

  • Jgalt1975||

    Communication with your attorney is "automatically" privileged if it otherwise meets the criteria for attorney-client privilege (e.g. concerns legal advice, made in confidence, etc.). You can, however, be deemed to have waived the privilege if you don't provide a privilege log when one is required.

  • Jgalt1975||

    That's how it works in discovery in civil cases in federal court. Check F.R.C.P. 26(b)(5)(A)(ii):

    (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

    (i) expressly make the claim; and

    (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

  • Fist of Etiquette||

    More like Sheriff Drat! Am I right, people?

  • Crusty Juggler||

    As usual you are right.

  • loveconstitution1789||

    We know the USA is in trouble when these companies are not protected by the 1st Amendment and that ends the legal issue. Every judge siding with the 1st Amendment is what we need. Even the yelling "fire" exemption is not really relevant anymore, since we have fire alarms and activating one of those would not be freedom of speech.

    Just go to all person's speech is protected against government prohibition unless you actually harm someone else (i.e. defamation and Assault).

  • R C Dean||

    You know the 1A has nothing to do with subpoenas, right?

  • KDN||

    He loves the 1789 Constitution, so no, no he does not.

  • Diane Reynolds (Paul.)||

    So ENB who's on the Reason Sex-beat, totally whiffed an alt-text opportunity.

    *quietly judging*

  • Citizen X||

    That's an odd euphemism.

  • R C Dean||

    Whereas "I'm judging ENB so hard right now" isn't euphemistic at all.

  • R C Dean||

    Testing.

  • R C Dean||

    I'm getting a weird lag, where a comment doesn't get posted, until I post a second one, then they both show up.

  • Ted S.||

    I've been getting that, too.

  • PurityDiluting||

    Me three. Maybe Reason has put in a new quality control process

  • Lord Rollingpin||

    'new quality control process'
    A nice way of describing a total up fuck.

  • R C Dean||

    Anyone in corporate America understands that's what it means.

  • Cyto||

    I don't know how new this "subpoena all of their records" as a method of attacking undesirables is, but it is very worrisome. I suppose the modern history of it started with the tobacco suits. But now it seems that any government official who has subpoena power is using it to punish political enemies, go on fishing expedition against industries they don't like, or maybe just to score political points for themselves.

    We've seen a ton of blatantly political prosecutions and investigations in recent years - and nobody outside of the weirdos on libertarian sites seem to notice.

  • kbolino||

    nobody outside of the weirdos on libertarian sites seem to notice

    Lots of people know, and think it is righteous. Or they want to draw moral equivalence between a punitive fishing expedition and an investigation into criminal behavior launched in response (see: Jackand Ace's talking points).

  • PurityDiluting||

    If you have done nothing wrong, you have nothing to hide - so sayeth the liberty haters

  • Cyto||

    Lots of people know, and think it is righteous

    This is true.

    I got into this discussion over at the Skeptic's Guide. They had the giggles that Exxon/Mobile was being subpoenaed for all of their records regarding climate change et. al. - dating back to the 70's. Since the SGU and its members were nuisance sued (to the tune of over a half-million in expenses), I thought they might have a little more perspective on this sort of thing if I reminded them of their own experience.

    I was wrong. They were 100% in the camp of "just let the system work, and we'll see how it plays out". Even though they spent over a year complaining about the process being the punishment in their own case.

    Even really smart people who have rational thought and skepticism at the center of their discourse have an almost impossible time setting aside their personal biases.

  • Gunslinger||

    That just means they aren't actually really smart people, they can just fake it some of the time.

  • R C Dean||

    Its a symptom of a much deeper disease.

    I don't think the subpoena power itself is the problem. We need investigators to be able to issue subpoenas.

    The problem is the weaponization of the bureaucracy in the service of certain political/ideological ends. Which in turn can only come to pass with a large, unaccountable bureaucracy that is vested, de facto or de jure, with broad authority and discretion.

  • Diane Reynolds (Paul.)||

    Hmm, so new agencies independent of politics should fix it.

  • Conchfritters||

    "Justice Alito took no part in the consideration or decision of this application."

    Yeah, riiiiiiiight Johnny.

  • Longtobefree||

    Well, I bet the records are electronic. Claim that since the USA no longer controls the internet, the documents are lost forever. Or claim that the requested records were inadvertently emailed to Hillary. Or that you use a cloud storage service from Julian. Or just be extremely careless.

  • Gunslinger||

    Looks like they were going to go after them no matter what. http://bigstory.ap.org/article.....sted-texas
    Fucking asshole government can't leave well enough alone, let people do what they want.

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