Backpage.com has won a preliminary victory over Sheriff Thomas Dart of Cook County, Illinois, who has mounted a campaign against the site's "adult services" ads.
In a ruling issued late last week, U.S. District Court Judge John Tharp, Jr. temporarily prohibited Cook County, Ill. Sheriff Thomas Dart from continuing to pursue efforts to defund the company's ads.
"Backpage’s business is imperiled, and the users are in imminent jeopardy of losing a forum for protected (as well as unprotected) speech," Tharp wrote in a decision granting Backpage a restraining order against Dart.
The move comes four weeks after Dart sent letters to Visa and Mastercard -- on official letterhead -- urging them to stop processing payments for Backpage.com's adult services.
"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, which we have objectively found to promote prostitution and facilitate online sex trafficking," Dart wrote in late June to the credit card companies.
After receiving Dart's letter, both companies said they would no longer process credit card transactions for Backpage.
The classifieds site responded by temporarily allowing users to post free adult services ads. The company also sued Dart for allegedly violating its free speech rights.
"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," Backpage alleged in a lawsuit against Dart, filed in federal court last week.
The company is seeking a declaration that Dart's actions are unconstitutional, as well as an order requiring him to retract the letters he wrote to Visa and Mastercard. The classifieds site also says Dart should be banned from continuing to engage in an "unlawful and unconstitutional" attempt to restrain speech.
For his part, Dart counters that he has a free-speech right to air his complaints to Visa and Mastercard. "These letters, even if they are considered to have 'pressured' the credit card companies, constitute criticism and condemnation of the credit card companies' policies, which amounts to a valid exercise of Sheriff Dart's own free speech," he argued.
U.S. District Court Judge John Tharp, Jr. in Illinois rejected Dart's contention -- at least for now. He granted Backpage a temporary restraining order, which will remain in effect through at least Aug. 21. That order prohibits Dart from continuing to urge credit card companies to stop doing business with the site, but doesn't require him to retract his letters to the company.
"By writing in his official capacity on Sheriff’s Department letterhead ... 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," Tharp wrote. "Backpage has established a more-than-negligible likelihood of success on the merits of its claim that Dart’s informal lobbying of the credit card companies violated the First Amendment."
Dart, like several other law enforcement officials, criticizes Backpage for allowing users to post "adult services" ads, which often are barely disguised prostitution ads.
Lawmakers in Tennessee, Washington and New Jersey have attempted to pass legislation imposing liability on Backpage.com for allowing some sex trafficking ads. Those laws were all struck down because of the Communications Decency Act, a federal law that immunizes Web companies when people use online platforms to commit crimes.
Digital rights advocates argue that law exists for good reason: Without it, Web services providers would have to police users' posts -- which would require more resources than many Internet companies have at their disposal. The ultimate result is that people would have fewer opportunities to express themselves online.
Backpage also has defeated several lawsuits by sex trafficking victims. Most recently, in May a federal judge in Boston threw out a case brought by three teens who said Backpage.com facilitated the crimes committed against them.
Meanwhile, although Backpage has won a courtroom battle against Dart, the victory won't mean much unless Visa and Mastercard resume doing business with the site.
So far, the companies haven't indicated whether they will do so.
Tharp intends to hold a hearing on Aug. 20, when he will address Backpage's request for a long-term injunction against Dart.