Backpage.com wins injunction vs Chicago sheriff over adult ads
November 30, 2015 by cathyreisenwitz - Same info on Reuters and other sources
Today the 7th Circuit Court of Appeals told Cook County, Illinois, Sheriff Tom Dart, more or less, that his misplaced fear of sex work doesn’t trump Backpage’s right to free speech in Backpage.com, LLC v. Thomas Dart.
The lawsuit describes a man obsessed with censoring adult-oriented ads. Dart spent six years harassing Visa and Mastercard with threatening letters demanding they stop doing business with Backpage. A tiny percentage of ads are for adult services.
According to the press release his office distributed, the result was: “Sheriff Dart’s Demand to Defund Sex Trafficking Compels Visa and MasterCard to Sever Ties with Backpage.com.”
But now Circuit Judge Posner isn’t having it. In the opinion, Posner wrote:
“[Dart] 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.”
Posner goes on. “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.”
Not only is Dart being a dickhead about civil liberties, but he’s also very wrong about Backpage’s role in sex trafficking.
Posner shouts out Cato and Reason to correct Dart’s facts on sex trafficking generally. “Actually, 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.”
In fact, according to Cato, State Department data indicate that the opposite may be true.
Friend of mine and former sex worker Maggie McNeill explained another instance where Dart fails to grasp what he’s doing in her coverage of the case. Dart doesn’t distinguish sex work from sex trafficking.
“It’s a common conflation, backed by the idea that women are such brainless, innocent creatures we’re unable to have sex for reasons other than pleasure or romance; the idea of actually profiting from men’s desire to have sex with us would never enter our fluffy, pink little brains,” Maggie wrote. “So, even if a woman says she’s doing sex work voluntarily, she’s either lying or suffering from ‘Stockholm syndrome,’ and has actually been coerced by a ‘pimp.’”
The other issues, as friend Liz Nolan Brown has written extensively for Reason, is that websites such as Backpage.com make life safer for sex workers by enabling them to connect with customers online as opposed to on the street. The empirical evidence is strong that moving work indoors helps reduce violence against sex workers.
Dart is also confused about what role Backpage plays in rescuing trafficked children. In fact, as Cato points out, “Backpage has fully cooperated in investigations of actual child exploitation and other noxious activity and one of the foremost experts in trafficking posits that ‘[s]hutting down Backpage would mean that approximately 400 persons per month would not be identified as suspicious and would thus fall off the radar screen’ (because their credit-card tracking information would be lost).”
One interesting thing to note about the threatening letters is that Dart used potential investigation for violating money laundering laws to coerce Visa and Mastercard.
Posner: “The letter cites the federal money-laundering statute, 18 U.S.C. § 1956, thereby intimating that the credit card companies could be prosecuted for processing payments made by purchasers of the ads on Backpage that promote unlawful sexual activity, such as prostitution.”
Dart sent a memo to his staff suggesting they remind the credit card companies by phone, mail, email, or a visit in person of “their own potential liability for allowing suspected illegal transactions to continue to take place’ and their potential susceptibility to ‘money laundering prosecutions … and/or hefty fines.”
This is just one of many, many examples of politicians using the threat of money laundering investigations to punish legal but unwanted behavior. See Operation Choke Point.
And for what? The Justice Department has stated explicitly that the costs of fairly enforcing the money laundering laws as written outweigh the benefits. The Economist has calculated the effectiveness of the laws at preventing actual crime (most of which is non-violent) and calls them a “costly failure.”
============================== =====
Reuters also includes:
Writing for a three-judge panel, Circuit Judge Richard Posner said Dart's "official bullying" and "campaign of suffocation" amounted to censorship, preventing even transactions for ads touting "indisputably legal" activities from being processed.
"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," Posner wrote.
But as sheriff of a county with more than 5.2 million people, Dart cannot make "dire threats," including of possible prosecution, in a campaign "to crush Backpage's adult section - crush Backpage, period, it seems," the judge added.
The injunction bars Dart from coercing or threatening sanctions for doing business with Backpage.com, while the company pursues its lawsuit to stop his campaign.
In August, U.S. District Judge John Tharp rejected Backpage.com's bid for a preliminary injunction.
Posner said that was a mistake because Backpage.com would probably succeed on the merits, and suffered "irreparable injury" from its loss of First Amendment freedoms.
Sophia Ansari, press secretary for Dart's office, said the office was disappointed with Monday's decision, and looks forward to continuing the litigation and "doing all we can to protect victims from the horrors of human trafficking."
MasterCard spokesman Seth Eisen said the decision does not affect Backpage.com's status in accepting MasterCard cards. American Express and Visa had no immediate comment.
The case is Backpage.com LLC v. Dart, 7th U.S. Circuit Court of Appeals, No. 15-3047.