Dart Must Stop “Suffocation” of Backpage, Enjoined from Threatening Credit Card Companies

Today, in a major First Amendment victory, the Court of Appeals for the Seventh Circuit ordered Cook County Sheriff Tom Dart to halt his campaign of coercion against companies that provide financial services to Backpage.com.  The court ordered Dart to “take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions” in order to force a website off the Internet; Dart must also inform Visa and MasterCard of the court’s ruling.

This summer, Sheriff Dart sent threatening letters to Visa and MasterCard implying that they faced potential federal criminal prosecution for processing payments to Backpage.  Both companies promptly cut ties with Backpage, leaving the classified ads site with few alternatives for charging their users for posting advertisements.  Backpage sued, seeking an injunction against Dart and his efforts to starve Backpage off the web.  But the lower court, in a troubling opinion, found that Sheriff Dart had mixed his threats as a law enforcement official with personal “advocacy,” and so an injunction ran the risk of violating the Sheriff’s own First Amendment rights to express his opinion.

While government officials certainly retain the right to express their opinions as private individuals, when they act in their capacity as a public employee, they are not speaking as private citizens.

This was dangerous conclusion.  While government officials certainly retain the right to express their opinions as private individuals, when they act in their capacity as a public employee, they are not speaking as private citizens.  The district court’s ruling would have granted law enforcement officials and other government actors carte blanche to use intimidation tactics and threats to silence speech they disagree with, as long as they masked this coercion under a veil of “advocacy.”  CDT filed a brief in the case urging the Seventh Circuit to reject this view and to make it clear that when a government official seeks to silence a website by threatening its payment processors with punitive action and reputational damage, that official has violated the First Amendment.

The Seventh Circuit agreed.  In his opinion reversing the lower court and granting the injunction against Sheriff Dart, Judge Posner wrote that:

Unwittingly the judge was suggesting a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion.  The formula consists of coupling threats with denunciations of the activity that the official wants stamped out, for the target of the denunciation will be reluctant to acknowledge that he is submitting to threats but will instead ascribe his abandonment of the activity to his having discovered that it offends his moral principles.  The judge was giving official coercion a free pass because it came clothed in what in the absence of any threatening language would have been a permissible attempt at mere persuasion.

It’s more crucial than ever to maintain strong First Amendment standards protecting freedom of speech.

As the Internet increasingly becomes everyone’s primary platform for expression and access to information, it’s more crucial than ever to maintain strong First Amendment standards protecting freedom of speech.  As we discussed in our brief, people’s ability to use the Internet to share their own views depends on intermediaries, including content hosts, access providers, domain name registrars, and all of the other technical facilitators of a user’s speech.  Those intermediaries, and speakers themselves, also depend on access to the financial system; cutting someone off from the ability to send and receive payments (to pay for server space, access costs, or personnel expenses) can easily starve that speaker into silence.  Any of these technical or financial intermediaries is potentially vulnerable to threats of government sanction.

Further, these intermediaries may be far removed from the speech interests at stake, and may face competing incentives that discourage them from standing up against government threats in court.  In his opinion, Judge Posner describes the incentives that the credit card companies faced in this case, noting that the revenue Visa or MasterCard generates from its relationship with Backpage is a mere fraction of their annual global revenues.  “Yet the potential cost to the credit card companies of criminal or civil liability and of negative press had the companies ignored Sheriff Dart’s threats may well have been very high.”

A weak First Amendment standard against government threats would mean the foundation for free speech online could be easily undermined.  Allowing law enforcement officials to cloak their coercion in the protection of the First Amendment would create an even stronger incentive for intermediaries to acquiesce to this sort of extralegal censorship.  So it’s good news for speakers everywhere that the Seventh Circuit is clear: “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.”