Commentary

Illinois Sheriff Can Resume Campaign Against Backpage

Thomas Dart, the crusading sheriff of Cook County, Ill., is free to resume lobbying against classifieds site Backpage.com, thanks to a new decision by U.S. District Court Judge John Tharp, Jr. in Illinois.

In the ruling, published on Monday, Tharp refused to enjoin Dart from seeking to defund the company's ads. Tharp previously blocked Dart from lobbying credit card companies against Backpage, but that temporary restraining order expired late last week.

The new decision marks the latest development in the public battle between Dart and Backpage over the site's "adult" ads. Dart, like other critics of Backpage, argues that the company promotes prostitution by allowing the ads.

Backpage counters that it isn't responsible for crimes committed by Web users who upload or respond to ads. The company also points out that the federal Communications Decency Act broadly immunizes Web services providers from liability for users' activities. In fact, the classifieds site has defeated several lawsuits by sex trafficking victims; most recently, a federal judge in Boston threw out a case brought by three teens who said Backpage.com facilitated the crimes committed against them.

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Earlier this year, Dart urged Visa and Mastercard 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 then said it would allow users to post free adult services ads -- at least temporarily. The company also sued Dart in federal court for allegedly violating its free speech rights.

Tharp initially sided with Backpage, ruling in late July that the company had shown "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."

The judge also said in his initial ruling that Backpage's business was "imperiled," and that the company's users faced the prospect of losing a forum for speech. He issued a restraining order against Dart that prohibited him from continuing with an initiative aimed at cutting off Backpage's ability to process financial transactions.

But in the last three weeks, Dart was able to change the judge's mind and convince him to allow the restraining order to expire.

What accounts for Tharp's apparent flip-flop?

For one thing, Dart presented evidence that Mastercard and Visa were already considering ending their relationship with Backpage before he got involved.

"Even though Dart's letters precipitated their speedy action, there is evidence that the credit card companies ceased doing business with Backpage.com because they did not want their products to be associated with the content posted there," Tharp wrote in his most recent ruling.

In addition, Dart put forward evidence showing that Backpage's adult section "overwhelmingly" contains ads for prostitution. "In over 800 sting operations responding to Backpage ads since 2009, Dart's officers have made arrests for prostitution, child trafficking, or a related crime 100% of the time," Tharp noted.

What's more, Tharp wrote, Dart has a constitutional right to express his opinion.

"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," Tharp wrote in the new ruling. "To this side of the scale must also be added the profound interests of the victims of human trafficking that Backpage's advertising facilitates, including their safety, their dignity, and their very lives."

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