Judge Slams Meddling Sheriff Thomas Dart For Likely First Amendment Attack On Backpage

from the who-didn't-see-that-coming? dept

A few weeks ago, we wrote about the highly questionable move by Cook County Sheriff Thomas Dart to first strongarm credit card companies into no longer working with Backpage.com, and then host a press conference patting himself on the back for interfering in a legal business relationship between private entities who were not breaking the law. In fact, Sheriff Dart knew damn well that no one was breaking the law, because in 2009 he ridiculously sued Craigslist, incorrectly trying to hold the site liable for the actions of users who engaged in prostitution. As we pointed out, this was not just firing at the wrong target, but doing so in a counterproductive way as well, since Craigslist happily worked with law enforcement to help them identify users who were engaged in prostitution. Not surprisingly, Sheriff Dart’s grandstanding lawsuit was tossed out with the judge explaining in detail how Sheriff Dart didn’t seem to understand the law.

So it seemed really strange to us that Dart was still focusing on the same thing, but with Backpage, and pressuring Visa and Mastercard not to do business with the site, based on his own mistaken notion of the law. Last week, Backpage struck back and sued Sheriff Dart claiming that the Sheriff’s actions violated the First and Fourteenth Amendments, concerning both prior restraint and violations of due process:

Sheriff Dart?s actions are an unconstitutional prior restraint of speech without legal authority or due process. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). The First Amendment precludes a government official from banning a forum of speech simply because he dislikes it. Prior restraints are presumptively unconstitutional and can be imposed only in the most exigent of circumstances, requiring the least restrictive means to further a compelling state interest and requisite procedural safeguards. Sheriff Dart?s actions do not come close to passing constitutional muster.

Sheriff Dart?s actions to cripple Backpage.com and all speech through the site are an especially pernicious form of prior restraint. 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. Backpage.com received no notice or opportunity to be heard before card services were terminated. Moreover, Sheriff Dart?s actions have not only infringed Backpage.com?s rights to publish and distribute speech, but the rights of millions of the website?s users to post and receive protected speech.

The lawsuit notes that not being able to accept credit cards has cut off nearly all revenue to Backpage, and so the company sought a temporary restraining order against Dart in his efforts to kill off their business.

The judge in the case, Judge John Tharp, wasted no time, granting the temporary restraining order in just two days and slamming Sheriff Dart in the process. The court, citing the same famous Bantam Books v. Sullivan case that Backpage mentions, notes that it appears Dart was out of line. The Bantam Books case matches up pretty closely to this case: it involved “informal pressure” from a government body to try to stomp out the circulation of “objectionable” publications, including obscene material. Even though there was no formal legal process and obscene content is not protected by the First Amendment, the Supreme Court still found the effort unconstitutional as prior restraint, saying it would go overboard and suppress speech.

Basically all of Dart’s attempts to avoid this failed. He first argued that Backpage had no standing for the First Amendment claim because it’s not Backpage’s speech that’s at stake. The court rejects that, noting that it has standing as the key enabler of that speech.

Backpage may stand in the shoes of its users in seeking relief from the burden placed on their freedom of speech as a result of not being able to use credit cards to access Backpage?s forum. Here, Backpage meets the ?relaxed? third-party standing requirements because its Backpage?s commercial injury gives it ?sufficient injury-in-fact to satisfy the Article III case-or-controversy requirement? and it can ?reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.? … In addition, Backpage?s own status as, in essence, a publisher (it does not create any content) gives it a direct First Amendment injury.

And, of course, Dart’s claims that there is no protected speech in prostitution ads also falls completely flat, because there’s plenty of other content on Backpage:

Nor does the Court accept Dart?s argument that standing is lacking because there is no protected First Amendment interest at stake here at all. 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.

Separately, the court notes that even if Dart is correct that those ads are not protected by the First Amendment, that’s up to a court to decide, not Dart on his own. That’s called due process.

Given that Backpage has standing, is it likely to succeed on the merits? The court finds it likely enough to grant the temporary restraining order:

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.?

The threat at issue in Bantam Books came from Rhode Island?s Commission to Encourage Morality in Youth, which had no direct authority to prosecute or impose sanctions on the distributors it entreated to stop circulating certain books. Despite simply requesting ?cooperation? from book distributors, the Commission?s actions effectively suppressed the circulation of the objectionable books entirely because of the Commission?s official status, its coercive language, and its practice of sending police to follow up with the distributors. As the Supreme Court explained, ?though the Commission is limited to informal sanctions?the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation?the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ?objectionable? and succeeded in its aim.?…

The same principle applies in this case. Dart did not directly threaten the companies with an investigation or prosecution. But by writing in his official capacity on Sheriff?s Department letterhead, requesting a ?cease and desist,? invoking the legal obligations of ?financial institutions? to cooperate with law enforcement, and requiring ongoing contact with the companies, among other things, it could reasonably be inferred that Dart brought the weight of his office to bear on his ?request? that the companies stop their association with Backpage altogether. And even if it is true that Dart has no jurisdiction over the credit card companies, he could certainly refer an investigation to the appropriate authority…. Moreover, the credit card companies were not privy to Dart?s candid admission when they read the letters and acted accordingly.

The court also slaps away Dart’s argument that there’s no problem here since the credit card companies’ decision was “voluntary”:

Another potential distinguishing feature of Bantam Books is the clear finding in that case that the book distributed had not cooperated voluntarily with the Commission?s request to stop circulating certain titles. Here, Dart contends that any action by the credit card companies was wholly voluntary. But for purposes of a TRO, enough signs point in the other direction. These companies had worked with Backpage for more than a decade, and they terminated their relationships because of Dart?s letters. The Court cannot state as a matter of law that the letters were not a threat….. Whether Dart coerced the companies or simply educated them has not yet been definitively established, but given the timing of the withdrawals and the companies? public statements, at the very least it is clear on this record that the companies did not act spontaneously.

The court also notes — as we’ve pointed out for years — that there’s no evidence (and certainly none presented by Dart) that shutting down Backpage would actually lead to a decline in prostitution and trafficking. It also makes the same point we’ve been making for years that Backpage appears to be a great tool for law enforcement to use to track down such lawbreaking:

The hardships clearly weigh more heavily on the plaintiff and its users. Backpage?s business is imperiled, and the users are in imminent jeopardy of losing a forum for protected (as well as unprotected) speech. Sheriff 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; 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.

The judge also completely smacks down Dart’s weird and nonsensical claim that the public is “better served” this way because Backpage has since made all of its ads free. But, the court notes — how does that make sense, when in the same breath Dart has been arguing that he wants less access to Backpage?

As for the public interest, 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.

So in the end, a temporary injunction is issued, and there will be a hearing later this week on a longer preliminary injunction. Of course, that alone won’t necessarily mean that the credit card companies go back to working with Backpage, so the company may end up having to shut down even if it wins.

All this should raise serious questions about just what Sheriff Dart is up to here, other than trying to drum up bogus grandstanding headlines to get attention by claiming that he’s “cleaning up the internet” or something similarly ridiculous. If Sheriff Dart really wanted to go after prostitution online, he’d be working closely with Backpage to go after those actually responsible, rather than conspiring to drive it somewhere else while giving himself misleading headlines.

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Comments on “Judge Slams Meddling Sheriff Thomas Dart For Likely First Amendment Attack On Backpage”

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Anonymous Coward says:

This decision may even spell trouble for the credit card companies since they acted against Backpage without further inquiring from the Sheriff’s office. Visa and Mastercard should have required a court order to shut downm services. The Sheriff’s didn’t bother going through the courts but instead, bypassed the courts and went straight to the credit card companies. I suspect that Visa, Mastercard and the other credit card companies may end up being forced to restore services but also to pay damages done to Backpage because of it.

JD says:

Re: Re:

i don’t know that this is accurate. I don’t believe Visa or MC have any requirement under law to accept all transactions. I suspect, that they could easily, even if there was legal standing they had to provide services to all, that BP cannot easily discern what transactions relate to prostitution (or any illegal activities) and therefore, in accordance with law(s) (likely federal money laundering would be cited) they must not accept any transactions to ensure they aren’t accepting those in furtherance of crime.

Anonymous Coward says:

Re: Re: Re:

AIUI, that’s correct in the US, where banking and payment processing services don’t have an obligation to accept transactions. (It is different in various European countries, where it is mandatory for payment processors to deal with any lawful business, which has created problems for the (then) US-owned MasterCard, who were trapped by the concurrent obligation and prohibition to process payments to a company selling Cuban cigars.)

TCrocker (profile) says:

Re: What you suspect is already true--read the article

The judge gave Backpage.com almost immediate relief after service was discontinued without warning; “…Judge John Tharp wasted no time in granting the temporary restraining order in just two days.”

And yes, I would think Backpage.com has grounds to sue for loss of revenue due to the [unlawful] denial of services.

Mason Wheeler (profile) says:

Separately, the court notes that even if Dart is correct that those ads are not protected by the First Amendment, that’s up to a court to decide, not Dart on his own. That’s called due process.

I can follow (and agree with) most of this, but that line throws me for a bit of a loop. Doesn’t United States v. Williams, specifically cited in here by the court, mean that a court already has decided, and these guys consider it a valid precedent?

Anonymous Coward says:

Re: Re:

@MasonWheeler: You are correct. But just because one court made a decision that’s usable as case precedent doesn’t mean that other courts will use said precedent. There are other subjects that have enough court splits to make your head spin. ‘Employee/contractor’ and ‘portal to portal’ are two subjects that have quite a few split decisions.

Quiet Lurcker says:

Re: Re:

Not a lawyer here, so I’m not an expert and obviously enough, ‘your mileage may vary’.

The Williams court was present with a particular set of facts.

The story covered here is a different set of facts. Under due process, even though the facts are similar in the two cases, this set of facts must be decided by a different jury than the one which decided the first set of facts.

Then, if and only if the two sets of facts are sufficiently similar, the court should make a ruling in this case that’s similar to the ruling the Williams court made.

JD says:

Re: Re:

I think the crux here is due process. Even in established case law (and per others it may not be that established) the business is entitled to due process. The proper way would be to bring suit against BP asserting that they cannot provide a means to prostitution and claim 1A protection. This, just as a criminal trial, still has to be litigated. There are very few areas where law enforcement can just tell you to stop something (think DMCA takedown requests and such) and in most of those cases, there is still the option to fight them in court. He tried to do an end run around their due process by trying to cutoff their funding, instead of litigating it in a court, like he should have. If you let this stand, then what is to stop an overzealous law enforcement officer from trying to do the same with content that is of questionable value and morality, but IS protected under 1A?

Anonymous Coward says:

All this should raise serious questions about just what Sheriff Dart is up to here,

Dart is a politician, which means he want headlines to use to win elections, and to impose his vision of society on everyone else. It is unfortunate that many people will agree with his specific actions, while ignoring that they are giving a tyrant power over themselves.

Anonymous Coward says:

“and obscene content is not protected by the First Amendment”

If you can use the definition of obscene to merit no protection from the 1st amendment then the 1st protects nothing. All need be is to classify something as obscene, including your name.

Additionally adding insult to injury that court found “on constitutional” grounds that it was infringing while simultaneously stating that there were not protections from the 1st? How? How can something be not protected but also found unconstitutional? Cognitive Dissonance much?

What the fuck sort of twilight zone are we living in here?

Dan (profile) says:

Re: Re:

Obscenity has a specific and narrow, albeit not very clear, legal definition–see some discussion at Wikipedia. It’s long been settled law that obscenity is one of the categories of speech that are not protected by the First Amendment (another is solicitation for a crime, such as for prostitution). Thus, whatever obscene speech may be on backpage.com is not protected by the First Amendment.

If everything on backpage.com were obscene, and the evidence in the record at the time of this hearing were enough to establish that, then Sheriff Dart would have no Constitutional problem in doing everything he could to shut it down. However, that isn’t the case. At least some of the content on backpage.com (almost all of it, most likely) is not obscene, and even if that were not the case, there’s no way that the judge could find, on the record at a TRO hearing, that it’s all obscene. So, in summary:

* Obscene speech is specifically and narrowly defined by law
* Obscene speech, as so defined, is not protected by the First Amendment
* Whatever obscene speech is on backpage.com is not protected by the First Amendment
* Whatever speech on backpage.com is NOT obscene (or a true threat, or a solicitation, or one of the other established First Amendment exceptions) IS protected by the First Amendment–and this category is not empty.
* Since at least some of the speech on backpage.com is protected by the First Amendment, Sheriff Dart’s actions are presumptively an unconstitutional prior restraint.

Sheriff Tinkietrapper says:

What about MY winkiedoodle?

Isn’t it a rule, or at least a firm guideline that when you have a crusading, ah, individual such Dart, his evidence arises from experience more personal than he lets on?
The one advantage I can see to declaring obscene speech unprotected by the first is that we could legally tell most of DC to STFU.

Anonymous Coward says:

I don’t know where the thread about how this net neutrality “victory” is a FUCKING PIECE OF SHIT enforced by Obama, not Wheeler, at least I guess this time they read it, it was only 400 pages, but in private. It opens back the doors to throttling, traffic shaping and an ominous “general conduct” provision that allows the FCC to regulate against anything it decides will cause “harm” to consumers or content providers.

Lol, I’m sorry America, you lost the game.

Anonymous Coward says:


This and other stories like this demonstrate why cash is king and always will be. As long as there are money gatekeepers like the credit card processors who roll over at every DOJ and sheriff’s letter while also wanting to impose their version of morality, we’ll always still be able to use cash, however worthless it might be.

Tanner Andrews (profile) says:

[legal test for obscenity]

Obscenity has a specific and narrow, albeit not very clear, legal definition

Yes, it does. The problem is that the definition is not very usable due to wear and tear.

Definition: “I know it when I see it”. Jacobellis v. Ohio, 378 U.S. 184 (US 1964).

Wear and tear: Justice Stewart is no longer available to view and inform us.

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