Court: Sherriff Can't Demand Credit Card Companies Cut Ties With Backpage

[+ quoththeraven]

Back in November, the 7th Circuit Court of Appeals held that Cook County Sherriff Tom Dart had acted unconstitutionally by sending threatening letters to Visa and MasterCard seeking (and succeeding) to have them cut ties with Backpage because of his belief that its adult ads were facilitating prostitution and trafficking. (As has been previously discussed here, Dart believes prostitution and trafficking are one and the same.)

 

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/30/sheriffs-letters-to-visa-and-mastercard-demanding-that-they-stop-doing-business-with-backpage-com-violate-the-first-amendment/

 

Excerpt from the opinion:

 

The Sheriff of Cook County, Tom Dart, has embarked on a campaign intended 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. Visa and MasterCard bowed to pressure from Sheriff Dart and others by refusing to process transactions in which their credit cards are used to purchase any ads on Backpage, even those that advertise indisputably legal activities. …

 

Backpage … contend(s) that the sheriff is curtailing freedom of expression, in violation of the First Amendment. The sheriff ripostes that he’s not using his office to organize a boycott of Backpage by threatening legal sanctions, but merely expressing his disgust with Backpage’s sex-related ads and the illegal activities that they facilitate. That’s not true, and while he has a First Amendment right to express his views about Backpage, 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.

 

The difference between government expression and intimidation — the first permitted by the First Amendment, the latter forbidden by it — is well explained in Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003) (per curiam): “the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive …. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.” …

 

It may seem odd, though it certainly does not exonerate Sheriff Dart, that he should be going after the credit-card companies rather than after Backpage itself. If Backpage is violating the law by accepting classified ads for “adult” services, which may include illegal services, such as prostitution, you’d think the sheriff would sue Backpage. But no; he tried that against Craigslist, a classified-ads website that had an adult section similar to Backpage’s, and he failed. District Judge Grady, in a thorough opinion, threw out the sheriff’s case. Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009). Craigslist, perhaps anticipating Dart’s campaign against Backpage, shut down its adult section the following year, though adult ads can be found elsewhere on its website. …

 

The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues by scaring off its payments-service providers…. [The sheriff] is using the power of his office to threaten legal sanctions against the credit-card companies for facilitating future speech, and by doing so he is violating the First Amendment unless there is no constitutionally protected speech in the ads on Backpage’s website — and no one is claiming that. The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands. E.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64–72 (1963); Okwedy v. Molinari, supra, 333 F.3d at 342–44. …

 

Section 230© of the Communications Decency Act of 1996 states, as Judge Grady had noted in the Craigslist case, that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” As our court has explained, interpreting section 230©, “an intermediary … normally is indifferent to the content of what it transmits.

 

Even entities that know the information’s content do not become liable for the sponsor’s deeds. Does a newspaper that carries an advertisement for ‘escort services’ or ‘massage parlors’ aid and abet the crime of prostitution, if it turns out that some (or many) of the advertisers make money from that activity?” Sounds like our case. Backpage is an intermediary between the advertisers of adult services and visitors to Backpage’s website. The credit card companies are more remote intermediaries.

 

It’s true that the Communications Decency Act does not immunize the credit card companies or Backpage from federal criminal liability, and remember that in the June letter Dart made ominous reference to the federal money-laundering statute. It’s unlikely that credit card companies would be prosecuted as aiders and abettors of Backpage, any more than the landlord of premises occupied by Backpage would be; but obviously credit card companies don’t like being threatened by a law-enforcement official that he will sic the feds on them, even if the threat may be empty. …

 

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] 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…. 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. See Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 67.

 

For where would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers, or “plug the band” (a listing of music performances that includes such dubious offerings as “SUPERCELL Rocks Halloween at The Matchbox Bar & Grill”), or men dating men or women dating women — 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 utilized by customers of Backpage, or other third parties, with legal or other coercive governmental action. …

 

[We direct the district judge to] issue the following injunction (which supersedes the temporary injunction, pending decision of the appeal, issued by this court on November 16):

 

Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com. Sheriff Dart shall immediately upon receipt of this order transmit a copy electronically to Visa and MasterCard and all other recipients of his June 29, 2015, letter (including therefore the directors of and investors in Visa and MasterCard), as well as to the Chief Inspector of the United States Postal Service….

 

NOTE: Section 230 of the Communications Decency Act is the provision that Rentboy's pre-shutdown attorney relied on to immunize it from prosecution. (At one point, I had a link saved to an article that mentions this, but it's been wiped out in the attempt to fix a problem I had with my tablet's proprietary web browser.) While that act should (in my opinion, for what it's worth) immunize a site like Daddy's from shutdown and prosecution (notice I say "should"), I would expect the prosecution in the Rentboy case to argue - as would also be true if the Redbook case had gone to trial - that the site's sole purpose was to facilitate the hiring of escorts for reasons that primarily (although not necessarily always) involved the exchange of sex for money (the state law definition of prostitution).

 

In other words, the argument is that Rentboy and sites like it are not protected by the CDA or the First Amendment to the extent the site is an integral part of an illegal transaction, similar to Silk Road or a site maintained to facilitate the retention of a gun for hire. I can't say that's a stupid or a poor argument.

[+ quoththeraven]

While I'm at it, let me pitch the above as PROOF that litigation is an effective means of advocacy. The Rentboy prosecution is still ongoing. Contributions to the Rentboy defense fund can be made here. Instructions on how to donate anonymously and further background can be found here.

 

Don't donate for Jeffrey Hurant or for the ex-employees who may get better deals because the advocacy of Hurant's lawyers makes it a less attractive case to prosecute against everybody. Do it for the escorts and freedom from government prying, all of which were adversely affected when Rentboy shut down.

 

But most of all, do it for yourselves. LGBTQ rights, including the right to marry, are meaningless if they not coupled with the ability to express oneself fully, including engaging in consensual adult activities. Otherwise it really is true that the scope of such rights is limited to what doesn't offend heteronormative values.

 

Those of us who believe this is a cause worth fighting for - and if it's not, what drew you to this site in the first place? - thank you for your donations.

[+ quoththeraven]

One last point. Backpage could not assert First Amendment rights if US courts did not consider corporations to be persons. Backpage can only use the First Amendment against a state (as opposed to federal) entity like the Cook County sheriff because of the doctrine that the passage of the Fourteenth Amendment resulted in the incorporation of certain of the first ten amendments and their application to the states and state officials. (That doctrine was first accepted by the Supreme Court during Earl Warren's tenure as Chief Justice - close to a century after the passage of the Fourteenth Amendment.) The Fourteenth Amendment only applies to persons.

So the next time someone asserts on this here forum that the problem with the Citizens United case is that corporations are treated as persons, please remember that I will be shaking my head and wanting to slap someone because it's Just. Not. True. Take away corporate personhood, and you have stripped all corporations - all non-individuals or associations of individuals (and possibly all LLCs as well) - of constitutional rights. Backpage couldn't have even brought this case. Is that really the result you want?

[down_to_business]

One last point. Backpage could not assert First Amendment rights if US courts did not consider corporations to be persons. Backpage can only use the First Amendment against a state (as opposed to federal) entity like the Cook County sheriff because of the doctrine that the passage of the Fourteenth Amendment resulted in the incorporation of certain of the first ten amendments and their application to the states and state officials. (That doctrine was first accepted by the Supreme Court during Earl Warren's tenure as Chief Justice - close to a century after the passage of the Fourteenth Amendment.) The Fourteenth Amendment only applies to persons.

So the next time someone asserts on this here forum that the problem with the Citizens United case is that corporations are treated as persons, please remember that I will be shaking my head and wanting to slap someone because it's Just. Not. True. Take away corporate personhood, and you have stripped all corporations - all non-individuals or associations of individuals (and possibly all LLCs as well) - of constitutional rights. Backpage couldn't have even brought this case. Is that really the result you want?

 

Yes. If that's my only choice. I will never agree with Citizens United. Just not gonna happen. Slap away.

[+ quoththeraven]

Yes. If that's my only choice. I will never agree with Citizens United. Just not gonna happen. Slap away.

 

The result in Citizens United is wrong, but it's not wrong because of corporate personhood.

 

At least that's my perspective on it. If you don't own a business and your employer is not a corporation, is a corporation but doesn't need First or Fourth Amendment protection, or you are unemployed, then none of what I just said matters to you. Feel free to continue to disparage corporate personhood. But there's more to it than blindly kowtowing to corporate fat cats.