Seventh Circuit Finds Cook County Sheriff Violated First Amendment in "Backpage.com" Credit Card Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Writing for a unanimous three judge panel, Judge Posner's opinion in Backpage.com LLC v. Dart, finds that the "campaign" by the Sheriff of Cook County, Tom Dart to "crush Backpage’s adult section— crush Backpage, period, it seems—by demanding that firms such as Visa and MasterCard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution" violated the First Amendment. 

The centerpiece was a letter from the sheriff, beginning “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.” The court finds it important that Dart is "sheriff first," and later observes:

Imagine a letter that was similar to Sheriff Dart’s but more temperate (no “demand,” no “compels,” no “sever [all] ties”) and sent to a credit card company by a person who was not a law-enforcement officer. The letter would be more likely to be discarded or filed away than to be acted on. For there is evidence that the credit card companies had received such complaints from private citizens, yet it was Dart’s letter that spurred them to take immediate action to cut off Back- page. For that was a letter from a government official containing legal threats and demands for quick action and insisting that an employee of the recipient be designated to answer phone calls or respond to other communications from the sheriff. It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious.

Judge Posner's opinion takes pains to point out that the sheriff is not "on solid ground" in suggesting that "everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.)" (emphasis in original).  Posner cites an article from xojane.com and wikipedia for information; he does not cite his own 1994 book Sex and Reason, though he might well have. 

Posner rejected the conclusion of the district judge that the credit card companies were not coerced - - - what would one expect the corporate executives to say?  - - - and likewise rejected the argument that the credit card companies were acting on new information brought to their attention by the sheriff.  An email exchange between two credit card employees referencing "blackmail" is mentioned.  Moreover, Posner rejected the argument that the sheriff had his own First Amendment right, as a citizen and even to engage in "government speech." 

A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens.

Posner then expands on why the sheriff's speech was a threat, and, with a resort to a bit of "law and economics" explains why the credit card companies would 'knuckle under' with "such alacrity." 

This is a major win for Backpages.com - - - and cannot be good news for the Cook County sheriff's office.