A federal judge has ruled that efforts by the Cook County Sheriff to crack down on adult classifieds site Backpage.com were unconstitutional, ordering the Sheriff to cease pressuring credit card companies to cut their links to the controversial site.
In a strongly worded opinion released on Monday, Judge Richard Posner of the Seventh Circuit Court of Appeals ruled that Sheriff Thomas Dart was prohibited from using his office to pressure service providers not to work with Backpage.com. In November, the court issued an injunction against Dart.
That injunction was issued again Monday. Dart is also required to notify Visa and MasterCard as well as the Postal Service of the order.
Posner said that Dart's actions, which were part of a long campaign by the Sheriff to vigorously enforce prostitution laws — and go after Backpage specifically — were like "killing a person by cutting off his oxygen supply rather than by shooting him."
In July, Visa and Mastercard confirmed they had cut Backpage from their networks, days after Sheriff Dart sent open letters urging each company to "immediately cease and desist" from working with the site and others like it, which "we have objectively found to promote prostitution and facilitate online sex trafficking."
Backpage has not been convicted of any such crime, in Dart's jurisdiction or any other.
In a lawsuit filed over the summer, Backpage alleged Dart's letters were a prior restraint on free speech. While Backpage has been a leading destination for advertising escort services since Craigslist got rid of adult personals in 2010 (Craigslist was also pursued by Dart in 2009, unsuccessfully), the site also hosts many legal ads. Posner pointed to "fetishism, phone sex, performances by striptease artists" as content that was still legal on the site.
The decision was hailed by libertarian-leaning legal thinkers from the left and right. Glenn Greenwald wrote that the ruling was "crucial for protecting free speech rights generally" and "highlights how dangerous such extra-judicial pressure campaigns can be, and makes them much more difficult by clearly ruling them to be unconstitutional."
Greenwald said the case had echoes of late 2010, when companies including Amazon, Paypal and Bank of America stopped doing business with Wikileaks after the site's publication of leaked U.S. diplomatic cables, amid pressure from politicians including Senator Joe Lieberman, chairman of the Senate Homeland Security Committee.
Ilya Shapiro, a lawyer at the libertarian Cato Insitute who co-authored a brief supporting Backpage, said the opinion "shows that courts are aware of this and will not countenance this use of power unless there’s something criminal he's actually going after." If Sheriff Dart "sees actual prostitution being transacted through Backpage he can go after those particular targets," Shapiro told BuzzFeed News.
While the decision only has direct effect in the area covered by the Seventh Circuit, Shapiro said that Posner is a respected judge and his reasoning will likely have "persuasive authority" with other judges. "I think that this will nip this sort of behavior in the bud, it was pretty blatant and pretty blunt."
While Visa issued an affadavit saying it wasn't threatened by Dart, Posner pointed to an emails between Visa employees charactertizing Dart's messages as "the subtle messages they’ve been sending us that could easily be taken for blackmail."
Posner noted Dart's letters to Visa and Mastercard were sent in his capacity as sheriff and pointed to legal statues, including money-laundering laws, which Posner said were "intimating that the credit card companies could be prosecuted for processing payments."
The letters were very effective. Dart told BuzzFeed News in July he was "stunned at how quickly Visa and MasterCard moved to say they weren’t going to be involved in that anymore, they were incredible corporate citizens.”
When Visa cut off Backpage, it issued a statement saying that its rules "prohibit our network from being used for illegal activity. Visa has a long history of working with law enforcement to safeguard the integrity of the payment system."
After Dart sent the letter to Visa, a Dart staffer told the company's legal team that it had scheduled a press conference and that they "would need to know tonight if that is the case so that we can ensure the Sheriff’s messaging celebrates Visa’s change in direction as opposed to pointing out its ties to sex trafficking."
Posner read this exchange as evidence "Visa and MasterCard were victims of government coercion aimed at shutting up or shutting down Backpage’s adult section.
"To say effectively 'you have a nice little website there shame if anything would happen to it,' we can’t let public official get away with that," Shapiro said.
After Backpage made its adult ads free, the Sheriff's office told the press "we were ready for this and not concerned. It’s unsustainable for them to maintain all of their lobbying, legal battles and all the money it takes for their server space without any revenue coming in." This, Posner wrote, showed that the Sheriff's office was trying to "to cause irreparable injury to Backpage."
A Visa spokesperson said today that it had no comment on the ruling "and our position has not changed." A MasterCard spokesperson said "there has not been a change in Backpage’s status in accepting our cards as a result of this decision." Backpage's attorneys did not respond to requests for comments.
The Cook County Sheriff's Office said in its statement: "While we are not surprised by this opinion, we are nonetheless disappointed and respectfully disagree with its conclusions. We look forward to proceeding with this litigation and to doing all we can to protect victims from the horrors of human trafficking."
The sheriff's office could try to take the case to the Supreme Court but it has not indicated its future plans. Dart has been a long-time very public opponent of prostitution and has gained a national profile for his large scale arrests of johns.
Backpage has soldiered on despite being cut off from credit card networks — the website still allows its users to buy "credits" to purchase ads. The credits can be bought with Bitcoin or cash, check, or money orders sent to a post office box in Texas. Posner said that Backpage got $9 million of its $135 million in annual revenue from adult ads.
Posner's ruling overturned an earlier decision by a judge that rejected Backpage's request for an injunction against the Sheriff.
"Unwittingly the judge was suggesting a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion," Posner said. The rights of internet publishers to host content that may be illegal — or offensive — to politicians and law enforcement are usually protected by the Communication Decency Act which generally protects publishers from responsibility for what users contribute to a website.
But Posner said that if Dart's strategy were held up in court, it would offer a way around the law: "coupling threats with denunciations of the activity that the official wants stamped out." But the threats, Posner said, "were not protected by the First Amendment; they were violations of the First Amendment."