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Aug. 26 — A county sheriff's letter requesting that credit card companies cease processing payments to online classified advertising site Backpage.com, based on allegations that the site advertised sex trafficking, did not create an unconstitutional prior restraint on free speech, the U.S. District Court for the Northern District of Illinois held Aug. 24.
Judge John J. Tharp, who had issued on July 24 a temporary restraining order against the sheriff, said that although he could not hold as a matter of law that the letter was not threatening, the evidence failed to show that any such threat caused the companies to cease processing payments for Backpage.com.
As a result, the court allowed the previously-entered TRO to expire and denied Backpage.com's motion for a preliminary injunction.
Cook County Sheriff Thomas Dart, in an effort to curtail online trafficking, sent letters to Visa Inc. and MasterCard Inc. to request that they cease and desist allowing the use of their credit cards to place ads on Backpage's website, whose “adult section” allegedly has been a leading forum for unlawful sexual commerce. Upon receipt of these letters, both companies opted to disallow credit card use on the entire website, not just in its adult section.
Backpage sought a TRO to enjoin Dart from future efforts to defund its business and an injunction that would require him to notify Visa and Mastercard of any ruling that it was unlawful for him to exhort them to cease processing payments to Backpage.
On July 24, the court ruled that Dart's letters likely created an unconstitutional prior restraint on free speech and granted the TRO until a full evidentiary hearing could be held (20 ECLR 1059, 7/29/15). A hearing was subsequently held Aug. 20.
In Bantam Books Inc. v. Sullivan, 372 U.S. 58 (1963), the Supreme Court held that a state commission's informal, yet coercive notices to book distributors that they remove offending material from their bookshelves, which resulted in the effective suppression of such books, amounted to an unconstitutional prior restraint on free expression. The court previously concluded that Dart's letter, written in his official capacity as sheriff, could reasonably be interpreted as an implied threat to take official action if the credit card companies declined his “request.”
In Henderson v. Huibregtse, 281 Fed. App'x 577 (7th Cir. 2008), the Seventh Circuit ruled that a city resolution urging a newspaper publisher to ban sales to prison inmates was not a prior restraint because the publisher, of its own volition, did not want to sell the subscriptions to inmates. Here, the court said that it was far from clear that any threat the letter may have contained caused the credit card companies to act. The companies' public statements and testimony demonstrated that they did not perceive Dart's letter as a threat and that they simply desired to not be associated with illegal transactions.
“If his use of the bully pulpit to educate and even shame the companies persuaded them to act, then there has been no prior restraint of speech by the government,” the court said.
Davis Wright Tremaine LLP represented Backpage.com LLC. The Cook County State's Attorneys Office represented Sheriff Thomas J. Dart.
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The text of the opinion is available at http://www.bloomberglaw.com/public/document/Backpagecom_LLC_v_Dart_Docket_No_115cv06340_ND_Ill_Jul_21_2015_Co/1.
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