from the go-away dept
We’ve written about Cook County Sheriff Thomas Dart and his desire to censor the internet for a few years now. Back in 2009, he sued Craigslist because he claimed it was “the single largest source of prostitution in the nation.” As we noted at the time, Craigslist was just a platform, and suing it made no sense at all — especially given that the company was more than willing to cooperate closely with law enforcement and help them track down people who were breaking the law online. In other words, whereas a sheriff who was actually interested in stopping law breaking might embrace the site and work with it to track down law breakers, Dart chose to sue the toolmaker. That lawsuit failed miserably, but Sheriff Dart never gave up his quixotic quest to blame internet companies for prostitution.
Over the past few years, Backpage.com has taken over the boogeyman reputation previously held by Craigslist when it comes to online prostitution. Back in July of this year, Dart proudly announced that he had scared Visa and Mastercard out of working with Backpage after he sent them a misleading letter effectively threatening them if they did not stop working with Backpage. Backpage quickly sued Dart and within weeks received a temporary restraining order, with the court wasting no time claiming that Dart’s actions in getting Visa and Mastercard to stop doing business with Backpage was unconstitutional prior restraint. However, the court later appeared to change its mind and refused to issue an injunction, saying that while Dart’s letter could be construed as a threat, it wasn’t censorship since he had no legal authority over the payment companies.
Backpage quickly appealed to the Seventh Circuit appeals court — which has now absolutely trashed Dart in a decision written by Judge Richard Posner. The entire ruling is well worth reading, but here are a few excerpts. Posner does not find the lower court’s reasoning convincing at all, quoting Okwedy v. Molinari to explain why:
that a public-official defendant lacks direct regulatory or decisionmaking
authority over a plaintiff, or a third party that
is publishing or otherwise disseminating the plaintiff?s message,
is not necessarily dispositive ? . What matters is the
distinction between attempts to convince and attempts to
coerce. A public-official defendant who threatens to employ
coercive state power to stifle protected speech violates a
plaintiff?s First Amendment rights, regardless of whether the
threatened punishment comes in the form of the use (or,
misuse) of the defendant?s direct regulatory or decisionmaking
authority over the plaintiff, or in some less-direct form.?
Posner is well aware of Dart’s previous failed attempt to sue Craigslist and notes the obvious intention of the letter to payment companies:
The suit against Craigslist having failed, the sheriff decided
to proceed against Backpage not by litigation but instead
by suffocation, depriving the company of ad revenues
by scaring off its payments-service providers. The analogy is
to killing a person by cutting off his oxygen supply rather
than by shooting him. Still, if all the sheriff were doing to
crush Backpage was done in his capacity as a private citizen
rather than as a government official (and a powerful government
official at that), he would be within his rights. But
he 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….
Central to Backpage?s case is a letter of June 29 of this
year that Sheriff Dart sent both to MasterCard?s CEO and
Board of Directors and to the corresponding personnel of
Visa. The letter is on stationery captioned ?Office of the
Sheriff,? and begins: ?As the Sheriff of Cook County, a father
and a caring citizen, I write to request that your institution
immediately cease and desist from allowing your credit
cards to be used to place ads on websites like Backpage.
com.? Notice that he is sheriff first, father and citizen
second; notice his use of the legal term ?cease and desist?;
notice that he calls MasterCard ?your institution,? implying
that the same letter is going to other ?institutions??namely
other credit card companies?in other words that he is organizing
a boycott. And notice that he doesn?t demand that
?your institution? refuse to allow ?your credit cards? to be
used to pay just for ads on Backpage?s website that promote
illegal products or services?he demands that ?your institution?
cease and desist from placing any ads ?on websites like
Backpage.com? (and a fortiori on Backpage?s own website)
even though ?adult? ads are only one of eleven types of classified
ad published on the website. Visa and MasterCard got
the message and cut all their ties to Backpage.
The letter goes on to state that ?it has become increasingly
indefensible for any corporation to continue to willfully
play a central role in an industry that reaps its cash from the
victimization of women and girls across the world.? The implication,
given whom the letter is addressed to, is that credit
card companies, such as MasterCard and Visa, ?willfully play
a central role? in a criminal activity (emphases added)?so
they had better stop! Indeed, the letter goes on to say, those
companies are ?key? to the ?growth? of sex trafficking in the
United States. (Actually, as explained in an amicus curiae
brief filed by the Cato Institute, Reason Foundation, and
DKT Liberty Project, citing voluminous governmental and
academic studies, there are no reliable statistics on which
Sheriff Dart could base a judgment that sex trafficking has
been increasing in the United States.) He is intimating that
two of the world?s largest credit card companies may be
?Financial institutions,? the letter continues, ?have the
legal duty to file ?Suspicious Activity Reports? to authorities
in cases of human trafficking and sexual exploitation of minors.? The letter cites the federal money-laundering statute,
18 U.S.C. § 1956, thereby intimating that the credit card
companies could be prosecuted for processing payments
made by purchasers of the ads on Backpage that promote
unlawful sexual activity, such as prostitution. And ?make no
mistake,? the letter thunders: ?Your [credit] cards have and
will continue to be used to buy ads that sell children for sex
on sites like Backpage.com. ? The use of credit cards in this
violent industry implies an undeserved credibility and sense
of normalcy to such illicit transactions and only serves to increase
And then, Posner notes, Dart makes his threat pretty damn clear:
And here?s the kicker: ?Within the next week, please
provide me with contact information for an individual within
your organization that I can work with [harass, pester] on
this issue.? The ?I? is Sheriff Dart, not private citizen Dart?
the letter was signed by ?Thomas Dart, Cook County Sheriff.?
And the letter was not merely an expression of Sheriff
Dart?s opinion. It was designed to compel the credit card
companies to act by inserting Dart into the discussion; he?ll
be chatting them up. Further insight into the purpose and
likely effect of such a letter is provided by a strategy memo
written by a member of the sheriff?s staff in advance of the
letter. The memo suggested approaching the credit card
companies (whether by phone, mail, email, or a visit in person)
with threats in the form of ?reminders? of ?their own
potential liability for allowing suspected illegal transactions
to continue to take place? and their potential susceptibility
to ?money laundering prosecutions ? and/or hefty fines.?
Allusion to that ?susceptibility? was the culminating and
most ominous threat in the letter.
Posner further notes that if an ordinary citizen had sent a letter with similar requests, and without the “demands,” the payment companies likely would have been “discarded or filed away.” Posner gets down to the truth of the matter:
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), when it is unclear that Backpage
is engaged in illegal activity, and if it is not then the
credit card companies cannot be accomplices and should not
be threatened as accomplices by the sheriff and his staff.
Posner points out that Section 230 protects Backpage from liability and the hints that Mastercard and Visa might be liable for federal crimes (which are exempt from Section 230) are ludicrous. He also knocks Dart for suggesting that all ads in the adult section of Backpage are illegal themselves, noting that plenty of it is perfectly legal, including fetishism and phone sex.
As a citizen or father, or in any other private capacity,
Sheriff Dart can denounce Backpage to his heart?s content.
He is in good company; many people are disturbed or revolted
by the kind of sex ads found on Backpage?s website.
And even in his official capacity the sheriff can express his
distaste for Backpage and its look-alikes; that is, he can exercise
what is called ?[freedom of] government speech.?… A government
entity, including therefore the Cook County Sheriff?s
Office, is entitled to say what it wants to say?but only
within limits. It is not permitted to employ threats to squelch
the free speech of private citizens. ?[A] government?s ability
to express itself is [not] without restriction. ? [T]he Free
Speech Clause itself may constrain the government?s
Posner clearly notes the potential slippery slope:
For where would such official bullying end, were it permitted
to begin? Some public officials doubtless disapprove
of bars, or pets and therefore pet supplies, or yard sales, or
lawyers, or ?plug the band? (a listing of music performances
that includes such dubious offerings as ?SUPERCELL Rocks
Halloween at The Matchbox Bar & Grill?), or men dating
men or women dating women?but ads for all these things
can be found in non-adult sections of Backpage and it would
be a clear abuse of power for public officials to try to eliminate
them not by expressing an opinion but by threatening
credit card companies or other suppliers of payment services
utilized by customers of Backpage, or other third parties,
with legal or other coercive governmental action.
Finally, Judge Posner rejects the lower court’s claims that issuing an injunction would hurt Dart’s own First Amendment rights:
The judge was further mistaken when he said that ?the
Sheriff?s own First Amendment rights are at stake in this
case and the Court must therefore also consider the risk that
erroneously entering an injunction would chill Dart?s own
right to speak out on issues of public concern. Sheriff Dart
has a First Amendment right to publicly criticize the credit
card companies for any connection to illegal activity, as long
as he stops short of threats? (emphasis added). But the judge
himself, in the passages we quoted earlier, had been emphatic
that Dart had not stopped short of threats. Those threats
were not protected by the First Amendment; they were violations
of the First Amendment.
This ruling has lots of great quotes that may be quite useful elsewhere. Over the years we’ve seen many politicians make similar threats — often to similar results. Remember when former Senator Joe Lieberman pressured Amazon to stop hosting Wikileaks? And similar pressure led Mastercard and Visa to stop accepting donations for Wikileaks as well — apparently in a deal with US diplomats. Lieberman (that guy again?!?) also famously put pressure on Google to censor websites that he deemed as promoting “terrorism” and similarly pressured Twitter to silence the feeds of people he didn’t like. He also threatened the NY Times for publishing Wikileaks’ documents.
And, of course, in just the last few weeks, we’ve seen increasing pressure from government entities potentially demanding censorship online of “bad” content in the wake of the Paris attacks. Hopefully, this ruling by Posner will provide a useful tool to combat such censorship. While it technically only applies in the 7th Circuit, Posner’s rulings are influential in other circuits as well. Of course, there’s a chance that Sheriff Dart will decide to waste more taxpayer money and seek for an en banc rehearing in the 7th Circuit or even ask the Supreme Court to hear the case as well. If so, this could become a key free speech case concerning government coercion to silence online speech.
Filed Under: 7th circuit, adult ads, censorship, first amendment, free speech, richard posner, thomas dart, threats
Companies: backpage, backpage.com, craigslist, mastercard, visa