Free Speech Dominates Censorious Sheriff

In late October, I blogged about a weird case out of Chicago where the sheriff decided to crusade against online-commerce site Backpage.com (similar to Craigslist). The law wouldn’t allow Cook County Sheriff Thomas Dart to go after Backpage directly, so he sent strongly worded letters to financial institutions in hopes that they would stop processing Backpage’s payments. The tactic worked, so Backpage went to court to save its business.

Well, on Monday, as free-speech advocates returned from their Thanksgiving breaks, the U.S. Court of Appeals for the Seventh Circuit overturned a district court decision to deny Backpage’s request for a preliminary injunction against Sheriff Dart. The opinion, authored by Judge Richard Posner, denounces Dart’s attempts in his official capacity to “starv[e Backpage] by pressuring credit card companies to cut ties with its website.” (The opinion was joined by Judge Diane Sykes, who was Cato’s 2014 B. Kenneth Simon Lecturer, which lecture you can read in the most recent edition of the Cato Supreme Court Review.)

Backpage offers 11 categories of ads, primarily facilitating mundane transactions like used-lawnmower sales and vacation rentals but also with an “adult” section broken down into titillating subcategories such as “dom[ination] & fetish” and “body rubs.” Sheriff Dart had unsuccessfully sued Craigslist over the content of its adult section in 2009 (though Craiglist removed its adult section a year later). Having previously failed with that approach, Dart employed a different technique in his persecution of Backpage, sending a letter on his official stationary to Visa and Mastercard, among others, that suggested that he could use his authority to initiate investigations into “institutions” that “willfully play a central role in an industry that reaps its cash from the victimization of girls and women across the world” unless they ceased to allow their credit cards to be used to purchase ads on Backpage.

Given that the potential brand damage from allegations of complicity in sex trafficking dwarfs the lost revenue from a relatively small website, Visa and Mastercard got the drift and stopped servicing Backpage. Judge Posner described this maneuver as an attempt to “kill a person by cutting off his oxygen supply rather than by shooting him.”

While Dart’s actions are troubling as an abuse of government power beyond the scope of his office, they also present serious First Amendment issues. While government officials are allowed to engage in expressive speech, even if we disagree on what constitutes government speech, they can’t intimidate private citizens or otherwise censor legal speech they find distasteful. Judge Posner asks,

[W]here 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.

Citing a long line of precedent, Posner concludes that “threatening penalties for future speech goes by the name of ‘prior restraint,’ and a prior restraint is the quintessential first-amendment violation.”

Opponents of government overreach – not just free-speech advocates – should celebrate this ruling because it serves as a direct rebuke to attempts by officials to bully organizations to do their bidding, against their best interests.

One further note: While the legal substance of the court’s opinion deals with the aforementioned First Amendment/government-intimidation issues, the nominal impetus behind Dart’s crusade against Backpage is the alleged growth of sex trafficking. Cato, along with frequent collaborators Reason Foundation and DKT Liberty Project, addressed this assumption in our amicus brief supporting Backpage. Judge Posner cited the brief, noting that “as explained in an amicus curiae brief filed by the Cato Institute, Reason Foundation, and DKT Liberty Project, citing voluminous governmental and academic studies, there are no reliable statistics on which Sheriff Dart could base a judgment that sex trafficking has been increasing in the United States.”