Commentary

Sheriff Can't 'Throttle' Backpage By Threatening Credit Card Companies

Two weeks ago, the 7th Circuit Court of Appeals prohibited Illinois Sheriff Thomas Dart from continuing to try to persuade credit card companies from providing services to Backpage.com.

Today, the appellate judges spelled out their reasoning in a sweeping opinion criticizing Dart for going too far in his campaign against Backpage's adult ads.

"As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content," Circuit Judge Richard Posner wrote for the three-judge panel. "And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes."

But, Posner said, there are limits. "In his public capacity as a sheriff of a major county (Cook County has a population of more than 5.2 million), Sheriff Dart is not permitted to issue and publicize dire threats against credit card companies that process payments made through Backpage’s website, including threats of prosecution (albeit not by him, but by other enforcement agencies that he urges to proceed against them), in an effort to throttle Backpage," Posner wrote in the 19-page opinion.

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"Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers ... 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," the ruling states.

Backpage sought a restraining order against Dart earlier this year, shortly after Visa and Mastercard said they would no longer process payment for transactions on Backpage.com. The credit card companies announced their decision soon after Dart wrote to the companies -- on official letterhead -- and asked them to stop allowing their credit cards to be used to purchase adult services ads. Dart, like many other observers, says that many of Backpage's "adult" ads are actually prostitution ads.

Backpage says it isn't responsible for crimes by users. The company also argued that its business was jeopardized as a result of Dart's letters to Visa and MasterCard.

U.S. District Court Judge John Tharp in the Northern District of Illinois initially accepted Backpage's argument, but later rejected the company's position. Among other reasons, Tharp said that Dart had a free-speech right to voice his opinion to the credit card companies.

After the credit card companies stopped processing payments for Backpage, the classifieds site began offering free adult services ads.

Dart's press office responded to the move by emailing the following statement to news outlets: “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.”

That statement showed that Dart's campaign was causing irreparable injury to Backpage, Posner wrote.

"Had Sheriff Dart sued Backpage seeking to enjoin its publication of sex-related ads, the company’s remedy would have been to seek a judgment dismissing the suit," the ruling states. "But Backpage is the plaintiff, and its only remedy is an injunction against the sheriff’s violating its First Amendment rights."

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