7th Circuit stops Cook County sheriff’s campaign against adult ads

A Chicago lawman who tried to rid an online forum of advertisements for adult services met the long arm of the First Amendment when he appeared before the 7th Circuit Court of Appeals.

Thomas Dart, the sheriff of Cook County, Illinois, launched a campaign to stop Backpage.com from posting an adult section that ran ads for such services as escorts, strippers and domination. Dart attempted to do this by cutting off the money. He sent letters in June 2015 to MasterCard and Visa, demanding they stop processing payments made to Backpage.com.

The credit card giant acquiesced and cut ties with the website. Backpage sought a preliminary injunction to stop Dart but the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the injunction.

Before the 7th Circuit, Backpage argued the sheriff was curtailing freedom of expression, a violation of the First Amendment. Dart countered that he was not using his office to organize a boycott of Backpage by threatening legal sanctions but only expressing his disgust with the website’s sex-related ads.

In Backpage.com LLC v. Thomas J. Dart, Sheriff of Cook County, Illinois, 15-3047, the 7th Circuit was not convinced by the sheriff’s arguments and instead saw his actions as “government coercion” and leading to a slippery slope. If Dart had been acting as a private citizen, he would have been within his rights, the unanimous panel stated. However, the Cook County law official was using the power of his office to threaten legal sanctions against the credit card companies for enabling future speech which violates the First Amendment.

Writing for the court, Judge Richard Posner held, “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.”

Dart sent his letter to the CEOs and boards of directors of MasterCard and Visa. It was printed on Cook County Sheriff official stationery and stated that as sheriff, he was writing to request your institution “immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage.com.”
The letter went on to assert that the companies are willfully playing a central role in an industry that reaps its case from the victimization of women and girls across the world.

To the 7th Circuit, this language implied the companies were participating in criminal activity. The court saw that Dart was intimating the credit card companies could be prosecuted for processing payments made by purchases of the ads on Backpage that promote unlawful sexual activity.

Again, Posner pointed out the letter carried more weight because it was from a government official. If a private citizen had written such a request, Posner wrote, MasterCard and Visa would have paid no attention. Dart’s letter, on the other hand, spurred them to take immediate action.

“For that was a letter from a government official containing legal threats and demands for quick action and insisting that an employee of the recipient be designated to answer phone calls or respond to other communications from the sheriff,” Posner wrote. “It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious.”

The district court also found Dart’s letter to be threatening but ruled that the threat was not prior restraint because it did not produced a consequence. District Judge John Tharp maintained the sheriff just reminded the credit card companies that they did not want to do business with an adult website.
Posner scoffed at that reasoning, saying the companies already knew the nature of the website prior to receiving Dart’s letter. If independent business concerns had caused them to cut off Backpage, they would have done so years ago.

In addition, Posner dismissed the district judge’s contention that Dart’s own First Amendment rights were at stake in this case and an injunction could chill the sheriff’s own right to speak out on issue of public concern. Posner pointed out Tharp, himself, had noted Dart’s letter contained threats and those threats were not protected free speech.

The 7th Circuit found that permitting the sheriff’s action would lead to a slippery slope toward more governmental coercion. Dart should not be allowed to issue threats against credit card companies that process payments made through Backpage in an effort to snuff out the online forum.

Posner questioned where such “official bullying” would end. He noted other public officials might disapprove of gay relationships, bars, yard sales and rock bands. But it would be an abuse of power for public officials to try to eliminate these other ads by threatening credit card companies or other payment services with coercive governmental action.

“…Sheriff Dart’s campaign of suffocation would be found to cause irreparable injury to Backpage, and irreparable injury is the essential condition of preliminary relief…which is all that is at stake in this appeal,” Posner wrote.

The 7th Circuit reversed and remanded with instructions that the sheriff and his staff take no actions to coerce or threaten credit card companies and other third parties with sanctions intended to stop payment from being provided to Backpage.com.