Backpage is an infamous classified ads website that provides an online forum for users to post ads relating to adult services. The sheriff of Cook County, Illinois (i.e. Chicago) sent letters to the major credit card companies urging them to prohibit users from using the companies’ services to purchase Backpage ads (whether those ads were legal or not). Backpage sued the sheriff, arguing the communications with the credit card companies were a free speech violation.
The lower court denied Backpage’s motion for preliminary injunction. Backpage sought review with the Seventh Circuit. On appeal, the court reversed and remanded.
The appellate court held that while the sheriff 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.
Judge Posner, writing for the court, mentioned the sheriff’s past failure to shut down Craigslist’s adult section through litigation (See Dart v. Craigslist, Inc. 665 F.Supp.2d 961 (N.D.Ill.2009)):
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 analogy is to killing a person by cutting off his oxygen supply rather than by shooting him. Still, if all the sheriff were doing to crush Backpage was done in his capacity as a private citizen rather than as a government official (and a powerful government official at that), he would be within his rights. But he 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 court went on to find that the sheriff’s communications made the credit card companies “victims of government coercion,” in that the letters threatened Backpage with criminal culpability when, à la Dart v. Craigslist and 47 U.S.C. 230, it was unclear whether Backpage was in violation of the law for providing the forum for the ads.
Backpage.com, LLC v. Dart, — F.3d —, 2015 WL 7717221 (7th Cir. Nov. 30, 2015)
Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.
