Sheriff Tom Dart was fed up. As the chief law enforcement officer of Cook County, Illinois, Dart was certain he had the authority to shut down websites that allowed advertisement of “adult” services. In 2009, he went after Craigslist—and failed miserably, because websites typically can’t be prosecuted when their users post otherwise illegal material. So for his next trick, Dart focused not on a website itself, but the credit card companies that facilitate commercial transactions through the website. On June 29, 2015, Dart wrote Visa and MasterCard a minatory letter implying that he would prosecute them if they continued to let Backpage.com—the sheriff’s new target, a classified ad site—use their services. Backpage sued, alleging that Dart was using his legal authority to suppress its protected speech, in violation of the First Amendment.
On Monday, a panel for the 7th Circuit Court of Appeals handed Backpage a unanimous victory in a concise, emphatic, bitingly funny opinion by Judge Richard Posner (a Slate contributor). Posner’s decision spans barely 20 pages. But it could easily serve as a treatise on the dangers that paternalistic legal crusades pose to free expression in the Internet age.
Posner, a rare judge who cares deeply about facts, begins by explaining precisely what Backpage’s adult section advertises, including
escorts, body rubs, strippers and strip clubs, dom[ination] and fetish, ts (transsexual escorts), male escorts, phone [sex], and adult jobs (jobs related to services offered in other adult categories, whether or not the jobs are sexual—not every employee of a brothel is a sex worker).
Some of these activities, Posner acknowledges, may be illegal. But, contrary to what Dart asserted, not all of them are “criminal, violent or exploitative.” Citing XO Jane and Wikipedia, the judge provides a delightful breakdown of the perfectly legal adult activities advertised on Backpage:
Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.) One ad in the category “dom & fetish” is for the services of a “professional dominatrix”—a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually. See What It’s Actually Like Being A Dominatrix (According To One Dominatrix), [xo Jane] … (“I make a living as a professional dominatrix. … I make a living by hitting, humiliating, dressing up, verbally attacking and otherwise fulfilling men’s weird fantasies about being dominated.”); see also Wikipedia, “Dominatrix.” … It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution.
Even worse, Posner notes, Dart didn’t just compel Visa and MasterCard to stop processing payments for Backpage’s adult services. He demanded that they stop processing all Backpage transactions—even indisputably legal ones, like sales of antiques and furniture. But curating information (including commercial sales) on a website is a free speech activity protected by the First Amendment. So how could Dart’s campaign to “crush Backpage, period” (in Posner’s words) comport with the Constitution?
The short answer, of course, is that it can’t. But Dart put up a creative defense, insisting that he was not really threatening Visa and MasterCard as a public official, but as a private individual. Therefore, his letter was also protected by the First Amendment. This, Posner writes, is nonsense:
The letter is on stationery captioned “Office of the Sheriff,” and begins: “As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage.com.” Notice that he is sheriff first, father and citizen second; notice his use of the legal term “cease and desist”…
And what about the substance of the letter? That, too, sounds an awful lot like a legal threat by a public official:
The letter goes on to state that “it has become increasingly indefensible for any corporation to continue to willfully play a central role in an industry that reaps its cash from the victimization of women and girls across the world.” The implication … is that credit card companies, such as MasterCard and Visa, “willfully play a central role” in a criminal activity (emphases added)—so they had better stop! Indeed, the letter goes on to say, those companies are “key” to the “growth” of sex trafficking in the United States. (Actually, as explained in an amicus curiae brief … 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.) He is intimating that two of the world’s largest credit card companies may be criminal accomplices.
It’s true that Visa filed an affidavit stating that “at no point did Visa perceive Sheriff Dart to be threatening Visa.” But what would one expect an executive of Visa to say? “I am afraid of the guy?” “He is in effect calling me an accomplice of a criminal organization (Backpage), and I’m afraid he might pull strings to get me investigated and even prosecuted by any one of several federal or state agencies?”
Concluding that “Sheriff Dart’s campaign of suffocation” would cause “irreparable injury to Backpage,” Posner finally orders Dart to “take no actions, formal or informal, to coerce or threaten credit card companies”—and to send a copy of his legal smack-down to Visa and MasterCard “and all other recipients” of his illegal letter.
Although Posner spends much of his opinion ridiculing Dart’s attempt to repackage his legal coercion as counseling from a concerned citizen, the core of his decision reaffirms two key First Amendment principles. The first is that government agents cannot replace outright censorship with “official bullying” in order to slip past the strictures of the Constitution. Dart’s evident goal here was to put Backpage out of business because he disapproves of several services it facilitates. But few of the those services are actually illegal—and many, like phone sex and striptease, are themselves constitutionally protected. Posner was right to call out and quash Dart’s slippery attempt to impose his own morality on Backpage and its customers.
The second First Amendment principle at stake here is the right of websites to curate and organize information free from government constraint. Section 230 of the Communications Decency Act already protects websites from liability when users post illegal material. But what about the more basic right of Backpage (and websites like Yelp and Google) to assemble, classify, and publish vast amounts of data as they see fit? The Supreme Court has suggested that the transmission of information is a type of speech—which seems especially true on Backpage, where information is conveyed through expression. Does the First Amendment really permit the government to pressure websites into removing information it doesn’t like?
For Posner, the answer is a vehement no. His decision is a definitive rejoinder to officials like Dart, who cloak censorial intentions (shutting down adult ads) in the garb of a noble battle (stemming sex trafficking). We might stop a lot of crimes by permitting censorship of the Internet, trading our First Amendment freedoms for the vague promise of greater safety. Posner’s response to this temptation is one worth taking to heart: The trade-off isn’t worth it.
This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.