CHICAGO (CN) – Cook County Sheriff Thomas Dart’s letters to Visa and Mastercard urging them to “cease and desist” from allowing their cards to be used on Backpage.com may violate the First Amendment, a federal judge ruled.
Last week, Backpage.com sued Sheriff Dart accusing him of illegally using backdoor methods to pressure credit card companies to stop doing business with Backpage.com, and thereby infringing on millions of users’ free speech rights.
The website is the second largest online classified ad service in the United States after Craigslist.
Dart sent letters to Visa and Mastercard requesting the companies to “cease and desist” allowing their cards to be “used to place ads on websites like Backpage.com, which we have objectively found to promote prostitution and facilitate online sex trafficking.”
He stated that the companies have a “moral, social, and legal right” to address the problem of prostitution, which, he noted, also often leads to the exploitation of children.
Within 48 hours, Visa and Mastercard elected to disallow the use of their cards on all of Backpage.com, leaving the website with very limited payment options. To prevent losing customers, Backpage stopped charging for ad placement, but it cannot remain in business long without ad revenue.
Backpage said that Dart reverted to this informal tactic after it won several lawsuits over the criminalization of sex ads on First Amendment free speech grounds.
U.S. District Judge John Tharp quickly issued an injunction on Friday,
“Backpage has established a more-than-negligible likelihood of success on the merits of its claim that Dart’s informal lobbying of the credit card companies violated the First Amendment by imposing an informal prior restraint on the advertisements hosted by Backpage.com,” Tharp said.
The judge also chastised Dart for having “made no argument, and provided no evidence, that prostitution, trafficking, and sexual exploitation of minors will be reduced significantly reduced by Backpage’s demise; indeed, it appears that an oft-used tool for identifying lawbreakers (by Dart and other law enforcement agencies) will be lost if Backpage were to fold.” (Parentheses in original.)
Dart has since admitted that he has no legal authority to force the credit card companies to cease doing business with Backpage. However, his letters bore the weight of his office with his “request” and used legal “cease and desist” language invoking financial institutions’ obligation to cooperate with law enforcement, the judge found.
Further, Backpage has shown that it is likely to suffer harm – go out of business – with a restraining order, whereas Dart makes no claim of harm, Tharp ruled.
“As for the public interest, Dart contends that public interest is best served right now because ‘the public is able to use Backpage.com for free.’ Curious as it is for Dart to equate the public interest with more access to Backpage.com, the argument is specious, for the record suggests that Backpage is in jeopardy of going under as a result of Dart’s tactics,” Tharp said. (Emphasis in original.)
Dart sought to have Craigslist declared a public nuisance in and accused it of facilitating prostitution, but a federal judge dismissed the lawsuit in 2009.
However, Craigslist soon “caved” to Dart’s attacks in 2010 and removed its “adult services” categories, the complaint claims, before he shifted his attention to Backpage.
Backpage has won lawsuits in New Jersey and Washington aimed at criminalizing the publication of sex ads that appear to offer sex with a minor.
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