Yesterday, in Backpage.com v. Dart a unanimous panel of the Seventh Circuit Court of Appeals in a lively opinion ordered Thomas Dart, the sheriff of Cook County, Illinois, to end his “campaign of suffocation” against the website and stop violating its First Amendment rights.
The court of appeals rejected Sheriff Dart’s contention that he was merely expressing his personal distaste for Backpage and not using his position as a government official to coerce Visa and MasterCard into discontinuing business with the website. Rather, the court of appeals held that Sheriff Dart’s actions amounted to an unconstitutional prior restraint on Backpage’s speech.
As we wrote about last month, we submitted an amicus brief to the Seventh Circuit arguing that government officials such as Sheriff Dart may not use their positions of authority to coerce companies with express or implied threats of legal liability into taking actions that censor speech—whether online or offline.
The Seventh Circuit agreed. Overruling the district court that had denied Backpage’s request for a preliminary injunction, the court of appeals issued the following order:
Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com.
While Sheriff Dart is rightly concerned about sex trafficking, the court of appeals noted that no one is claiming that there is “no constitutionally protected speech in the ads on Backpage’s website.” (emphasis in original) Yet “Visa and MasterCard bowed to pressure from Sheriff Dart and others by refusing to process transactions in which their credit cards are used to purchase any ads on Backpage, even those that advertise indisputably legal activities.” (emphasis in original)
Sheriff Dart had written letters “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.” The court of appeals noted that “It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious.” Thus the court held that Sheriff Dart’s actions constituted a prior restraint in violation of the First Amendment.
The Seventh Circuit equated Sheriff Dart’s campaign of “depriving the company of ad revenues by scaring off its payments-service providers” rather than going after Backpage directly through litigation with “killing a person by cutting off his oxygen supply rather than by shooting him.”
As we stated in our amicus brief, targeting financial intermediaries, though indirect, can be a particularly effective way of censoring online speech because “certain financial intermediaries play a near-existential role in online expression.”
Like access to Internet connectivity, access to the financial system is a necessary precondition for the operations of nearly every other Internet intermediary, including content hosts and platforms. The structure of the electronic payment economy . . . make these payment systems a natural choke point for controlling online content.
The Seventh Circuit made clear that Sheriff Dart, in his official capacity, does have “freedom of government speech.” However, the court of appeals stressed that such freedom has limits. He or any other government official or entity “is not permitted to employ threats to squelch the free speech of private citizens.”