EFF, along with the Center for Democracy & Technology and the Association of Alternative Newsmedia, submitted an amicus brief to the U.S. Court of Appeals for the Seventh Circuit in the case of Backpage.com v. Dart.
Backpage.com sued Thomas Dart, the sheriff of Cook County, Illinois, arguing that the sheriff’s successful campaign to get Visa and MasterCard to cease providing financial services to the website amounted to informal government censorship in violation of the First Amendment.
Internet intermediaries such as ISPs, web hosting companies, websites, and other service providers—as well as the financial institutions that support them and their users—are in positions of tremendous power within the online ecosystem. The ability of Internet users to communicate freely, access information, and engage in commerce is necessarily tied to these intermediaries.
Sometimes intermediaries act independently in ways that affect online speech such as taking down content or deleting accounts if they think users have violated the terms of service.
Other times, such as in this case, intermediaries like Visa and MasterCard cave to public or government pressure to take actions that affect online speech. Intermediaries, as private companies, do not violate the First Amendment when they do so. But government officials such as Sheriff Dart may not use their positions of authority to communicate express or implied threats of legal liability to coerce companies into taking actions that affect speech—whether online or offline.
Citing the Supreme Court case Bantam Books, Inc. v. Sullivan (1963), in our brief, we explain that “intermediaries are vulnerable to improper censorship pressures, especially from law enforcement” because of “the limited incentives for many intermediaries to willingly defend First Amendment interests not their own, and the practical barriers preventing most speakers and audiences from being able to do so.”
As we argue in the brief, such government coercion is different than simple advocacy and violates the First Amendment.