A federal court has ruled that an Illinois sheriff violated a classifieds website’s First Amendment right to freedom of expression by pressuring credit card companies to cut ties with the website.
Monday’s ruling stemmed from a dispute between Backpage.com and Sheriff of Cook County Thomas Dart. Backpage.com is an online forum for classified ads separated into sections and includes an adult section with subdivisions such as escorts and strip clubs.
Dart had sent letters to companies such as Visa and MasterCard telling them to prohibit their cards from being used to pay for all ads on Backpage.com because they might be used for illegal sex-related products or activities. Visa and MasterCard agreed, refusing to process purchases of any ads on Backpage.com
Backpage.com went to federal court seeking an injunction to stop Dart. A federal district court refused to grant the injunction, and Backpage.com appealed, arguing that Dart’s campaign violated its First Amendment right to free speech.
A three-judge panel of the 7th Circuit Court of Appeals reversed the federal district court’s ruling Monday in a decision written by Judge Richard Posner. The court also on Tuesday issued an injunction prohibiting Dart and his office from threatening third parties from providing services to Backpage.com
Dart had argued that he did not use his office to organize a boycott by threatening legal sanctions. Rather, he was just expressing his disgust with the website’s sex-related ads.
However, the court was not persuaded by Dart’s argument.
“… [A] public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment,“ wrote Posner.
The court’s decision focused on the June 29 letter that Dart sent to MasterCard’s CEO and board of directors, noting that that Dart identified himself first as sheriff before “father and caring citizen” and proceeded to imply that he was organizing a boycott and that MasterCard and other credit card companies were “criminal accomplices.”
The court noted that Dart had attempted to sue Craigslist over its sex-related ads but the district court threw out the case in 2009.
So, having failed to use litigation to shut down a similar website, Dart instead went after the credit card companies to deprive Backpage.com of ad revenue.
“The analogy is to killing a person by cutting off his oxygen supply rather than by shooting him,” wrote Posner.
The court also criticized the district court’s reasoning for not granting Backpage.com’s injunction, noting that the judge characterized Dart’s letters as threats but later held that those threats were not a prior restraint because they did not produce consequences.
Moreover, the court noted that the judge suggested a “formula for permitting unauthorized, unregulated, foolproof, lawless government coercion.” In short, government officials such as Dart could coerce a target as long as their threats are implicit. Follow @erikastrebel