Backpage.com, LLC v. Thomas Dart

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3047
BACKPAGE.COM, LLC,
Plaintiff-Appellant,
v.
THOMAS J. DART, Sheriff of Cook County, Illinois,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 6340 — John J. Tharp, Jr., Judge.
____________________
ARGUED NOVEMBER 13, 2015— DECIDED NOVEMBER 30, 2015
____________________
Before POSNER, RIPPLE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Backpage.com (we’ll call it just
Backpage) provides an online forum for classified ads sec-
tioned by subject matter, such as rentals, real estate, jobs,
and, among still others, “adult.” The adult section in turn is
subdivided into escorts, body rubs, strippers and strip clubs,
dom[ination] and fetish, ts (transsexual escorts), male es-
corts, phone [sex], and adult jobs (jobs related to services of-
2 No. 15-3047
fered in other adult categories, whether or not the jobs are
sexual—not every employee of a brothel is a sex worker).
The Sheriff of Cook County, Tom Dart, has embarked on
a campaign intended to crush Backpage’s adult section—
crush Backpage, period, it seems—by demanding that firms
such as Visa and MasterCard prohibit the use of their credit
cards to purchase any ads on Backpage, since the ads might
be for illegal sex-related products or services, such as prosti-
tution. 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.
Backpage sought a preliminary injunction to stop the
sheriff’s campaign of starving the company by pressuring
credit card companies to cut ties with its website. The dis-
trict court denied the injunction and Backpage has appealed,
contending that the sheriff is curtailing freedom of expres-
sion, in violation of the First Amendment. The sheriff ri-
postes that he’s not using his office to organize a boycott of
Backpage by threatening legal sanctions, but merely express-
ing his disgust with Backpage’s sex-related ads and the ille-
gal activities that they facilitate. That’s not true, and while he
has a First Amendment right to express his views about
Backpage, 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. American Family Association,
Inc. v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th
Cir. 2002).
The difference between government expression and in-
timidation—the first permitted by the First Amendment, the
No. 15-3047 3
latter forbidden by it—is well explained in Okwedy v. Moli-
nari, 333 F.3d 339, 344 (2d Cir. 2003) (per curiam): “the fact
that a public-official defendant lacks direct regulatory or de-
cisionmaking authority over a plaintiff, or a third party that
is publishing or otherwise disseminating the plaintiff’s mes-
sage, is not necessarily dispositive … . What matters is the
distinction between attempts to convince and attempts to
coerce. A public-official defendant who threatens to employ
coercive state power to stifle protected speech violates a
plaintiff’s First Amendment rights, regardless of whether the
threatened punishment comes in the form of the use (or,
misuse) of the defendant’s direct regulatory or decisionmak-
ing authority over the plaintiff, or in some less-direct form.”
Notice that such a threat is actionable and thus can be en-
joined even if it turns out to be empty—the victim ignores it,
and the threatener folds his tent. But the victims in this case
yielded to the threat.
It may seem odd, though it certainly does not exonerate
Sheriff Dart, that he should be going after the credit-card
companies rather than after Backpage itself. If Backpage is
violating the law by accepting classified ads for “adult” ser-
vices, which may include illegal services, such as prostitu-
tion, you’d think the sheriff would sue Backpage. But no; he
tried that against Craigslist, a classified-ads website that had
an adult section similar to Backpage’s, and he failed. District
Judge Grady, in a thorough opinion, threw out the sheriff’s
case. Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill.
2009). Craigslist, perhaps anticipating Dart’s campaign
against Backpage, shut down its adult section the following
year, though adult ads can be found elsewhere on its web-
site.
4 No. 15-3047
The suit against Craigslist having failed, the sheriff de-
cided to proceed against Backpage not by litigation but in-
stead by suffocation, depriving the company of ad revenues
by scaring off its payments-service providers. The analogy is
to killing a person by cutting off his oxygen supply rather
than by shooting him. Still, if all the sheriff were doing to
crush Backpage was done in his capacity as a private citizen
rather than as a government official (and a powerful gov-
ernment official at that), he would be within his rights. But
he 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
unless there is no constitutionally protected speech in the ads
on Backpage’s website—and no one is claiming that. The
First Amendment forbids a public official to attempt to sup-
press the protected speech of private persons by threatening
that legal sanctions will at his urging be imposed unless
there is compliance with his demands. E.g., Bantam Books,
Inc. v. Sullivan, 372 U.S. 58, 64–72 (1963); Okwedy v. Molinari,
supra, 333 F.3d at 342–44; American Family Association, Inc. v.
City & County of San Francisco, supra, 277 F.3d at 1125.
Central to Backpage’s case is a letter of June 29 of this
year that Sheriff Dart sent both to MasterCard’s CEO and
Board of Directors and to the corresponding personnel of
Visa. 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 Back-
page.com.” Notice that he is sheriff first, father and citizen
second; notice his use of the legal term “cease and desist”;
notice that he calls MasterCard “your institution,” implying
No. 15-3047 5
that the same letter is going to other “institutions”—namely
other credit card companies—in other words that he is or-
ganizing a boycott. And notice that he doesn’t demand that
“your institution” refuse to allow “your credit cards” to be
used to pay just for ads on Backpage’s website that promote
illegal products or services—he demands that “your institu-
tion” cease and desist from placing any ads “on websites like
Backpage.com” (and a fortiori on Backpage’s own website)
even though “adult” ads are only one of eleven types of clas-
sified ad published on the website. Visa and MasterCard got
the message and cut all their ties to Backpage.
The letter goes on to state that “it has become increasing-
ly 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 im-
plication, given whom the letter is addressed to, 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 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.) He is intimating that
two of the world’s largest credit card companies may be
criminal accomplices.
“Financial institutions,” the letter continues, “have the
legal duty to file ‘Suspicious Activity Reports’ to authorities
in cases of human trafficking and sexual exploitation of mi-
6 No. 15-3047
nors.” 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. And “make no
mistake,” the letter thunders: “Your [credit] cards have and
will continue to be used to buy ads that sell children for sex
on sites like Backpage.com. … The use of credit cards in this
violent industry implies an undeserved credibility and sense
of normalcy to such illicit transactions and only serves to in-
crease demand.”
And here’s the kicker: “Within the next week, please
provide me with contact information for an individual with-
in your organization that I can work with [harass, pester] on
this issue.” The “I” is Sheriff Dart, not private citizen Dart—
the letter was signed by “Thomas Dart, Cook County Sher-
iff.” And the letter was not merely an expression of Sheriff
Dart’s opinion. It was designed to compel the credit card
companies to act by inserting Dart into the discussion; he’ll
be chatting them up. Further insight into the purpose and
likely effect of such a letter is provided by a strategy memo
written by a member of the sheriff’s staff in advance of the
letter. The memo suggested approaching the credit card
companies (whether by phone, mail, email, or a visit in per-
son) with threats in the form of “reminders” 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.”
Allusion to that “susceptibility” was the culminating and
most ominous threat in the letter.
No. 15-3047 7
Upon receipt of the letter MasterCard forthwith stopped
allowing its credit cards to be used to purchase ads any-
where on Backpage’s website. Visa followed suit. So the
threats had worked. And so just two days after Dart’s letter
was sent, the Cook County Sheriff’s Office was able to (and
did) issue a triumphant press release captioned “Sheriff
Dart’s Demand to Defund Sex Trafficking Compels Visa and
MasterCard to Sever Ties with Backpage.com.” Notice “de-
mand,” not request; notice “compels,” not persuades; notice
“sever ties,” not “refuse to make payments for ads in the
adult section of the Backpage website.”
Imagine a letter that was similar to Sheriff Dart’s but
more temperate (no “demand,” no “compels,” no “sever [all]
ties”) and sent to a credit card company by a person who
was not a law-enforcement officer. The letter would be more
likely to be discarded or filed away than to be acted on. For
there is evidence that the credit card companies had received
such complaints from private citizens, yet it was Dart’s letter
that spurred them to take immediate action to cut off Back-
page. For that was a letter from a government official con-
taining legal threats and demands for quick action and in-
sisting that an employee of the recipient be designated to an-
swer phone calls or respond to other communications from
the sheriff. It was within days of receiving the letter that the
credit card companies broke with Backpage. The causality is
obvious.
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 accom-
plice of a criminal organization (Backpage), and I’m afraid
8 No. 15-3047
he might pull strings to get me investigated and even prose-
cuted by any one of several federal or state agencies?” More
significant than Visa’s denial of having succumbed to Sheriff
Dart’s pressure tactics is the statement in the affidavit that
the withdrawal of credit card services from Backpage “fol-
low[ed] communication with Sheriff Dart’s staff” and with
“Visa Legal Department” personnel. The reference was to
those follow-up communications from the sheriff’s office
promised (which is to say threatened) in the letters to Visa
and MasterCard. The promise/threat was honored. The day
after Dart sent the letter, his Director of Communications
emailed Visa that he “wanted to give fair warning that we
will be having a press conference tomorrow morning … .
Obviously the tone of the press conference will change con-
siderably if your executives see fit to sever ties with Back-
page and its imitators. Of course we would need to know
tonight if that is the case so that we can ensure the Sheriff’s
messaging celebrates Visa’s change in direction as opposed to
pointing out its ties to sex trafficking” (emphasis added). In an
ensuing exchange of messages between two Visa employees,
one said: “Yes, love the subtle messages they’ve been send-
ing us that could easily be taken for blackmail.” To which
the other replied that he’d told the boss of the Director of
Communications “that he needs to tone down the threaten-
ing language … all of his emails as a public employee are, of
course, discoverable and public, if anyone asks for them … .
Sigh.” Visa understood that Sheriff Dart’s letter and the fol-
low-up by his Director of Communications were serious
threats and therefore had to be taken seriously.
Visa and MasterCard were victims of government coer-
cion aimed at shutting up or shutting down Backpage’s
adult section (more likely aimed at bankrupting Backpage—
No. 15-3047 9
lest the ads that the sheriff doesn’t like simply migrate to
other sections of the website), when it is unclear that Back-
page is engaged in illegal activity, and if it is not then the
credit card companies cannot be accomplices and should not
be threatened as accomplices by the sheriff and his staff. Sec-
tion 230(c) of the Communications Decency Act of 1996
states, as Judge Grady had noted in the Craigslist case, that
“No provider or user of an interactive computer service shall
be treated as the publisher or speaker of any information
provided by another information content provider.” 47
U.S.C. § 230(c)(1); see Dart v. Craigslist, Inc., supra, 665 F.
Supp. 2d at 965–69. As our court has explained, interpreting
section 230(c), “an intermediary … normally is indifferent to
the content of what it transmits. Even entities that know the
information’s content do not become liable for the sponsor’s
deeds. Does a newspaper that carries an advertisement for
‘escort services’ or ‘massage parlors’ aid and abet the crime
of prostitution, if it turns out that some (or many) of the ad-
vertisers make money from that activity?” Doe v. GTE Corp.,
347 F.3d 655, 659 (7th Cir. 2003); see also Chicago Lawyers’
Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc.,
519 F.3d 666, 670 (7th Cir. 2008). Sounds like our case. Back-
page is an intermediary between the advertisers of adult
services and visitors to Backpage’s website. The credit card
companies are more remote intermediaries.
It’s true that the Communications Decency Act does not
immunize the credit card companies or Backpage from fed-
eral criminal liability, 47 U.S.C. § 230(e)(1), and remember
that in the June letter Dart made ominous reference to the
federal money-laundering statute. It’s unlikely that credit
card companies would be prosecuted as aiders and abettors
of Backpage, any more than the landlord of premises occu-
10 No. 15-3047
pied by Backpage would be; but obviously credit card com-
panies don’t like being threatened by a law-enforcement of-
ficial that he will sic the feds on them, even if the threat may
be empty. At oral argument Dart’s attorney reminded us
that “nowhere in Sheriff Dart’s letter does it say that he
thought that they [the credit card companies] were accom-
plices to a crime.” But the letter implies that they are—and it
was the letter that prompted the credit card companies to
abandon Backpage. They are unlikely to reconsider on the
basis of a lawyer’s statement at oral argument, months after
the initial threat.
Nor is Sheriff Dart on solid ground in suggesting that
everything in the adult section of Backpage’s website is crim-
inal, violent, or exploitive. Fetishism? Phone sex? Perfor-
mances by striptease artists? (Vulgar is not violent.) One ad
in the category “dom & fetish” is for the services of a “pro-
fessional dominatrix”—a woman who is paid to whip or
otherwise humiliate a customer in order to arouse him sex-
ually. See What It’s Actually Like Being A Dominatrix (Accord-
ing To One Dominatrix), www.xojane.com/sex/what-its-
actually-like-being-a-dominatrix-according-to-one-
dominatrix (visited November 27, 2015) (“I make a living as
a professional dominatrix. … I make a living by hitting, hu-
miliating, dressing up, verbally attacking and otherwise ful-
filling men’s weird fantasies about being dominated.”); see
also Wikipedia, “Dominatrix,” https://en.wikipedia.org/wiki/
Dominatrix (visited the same day). It’s not obvious that such
conduct endangers women or children or violates any laws,
including laws against prostitution.
The district judge remarked “that the majority of the ad-
vertisements [in Backpage’s adult section] are for sex”—but
No. 15-3047 11
a majority is not all, and not all advertisements for sex are
advertisements for illegal sex. There is no estimate of how
many ads in Backpage’s adult section promote illegal activi-
ty; we just gave examples of some that do not.
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 re-
volted by the kind of sex ads found on Backpage’s website.
And even in his official capacity the sheriff can express his
distaste for Backpage and its look-alikes; that is, he can exer-
cise what is called “[freedom of] government speech.” See
Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135
S. Ct. 2239 (2015); Pleasant Grove City v. Summum, 555 U.S.
460 (2009); Johanns v. Livestock Marketing Association, 544 U.S.
550 (2005); Rosenberger v. Rector & Visitors of the University of
Virginia, 515 U.S. 819, 833–34 (1995); Freedom from Religion
Foundation, Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011). A gov-
ernment entity, including therefore the Cook County Sher-
iff’s Office, is entitled to say what it wants to say—but only
within limits. It is not permitted to employ threats to squelch
the free speech of private citizens. “[A] government’s ability
to express itself is [not] without restriction. … [T]he Free
Speech Clause itself may constrain the government’s
speech.” Walker v. Texas Division, Sons of Confederate Veterans,
Inc., supra, 135 S. Ct. at 2246; see also Rosenberger v. Rector &
Visitors of the University of Virginia, supra, 515 U.S. at 833–34.
In his public capacity as a sheriff of a major county (Cook
County has a population of more than 5.2 million), Sheriff
Dart is not permitted to issue and publicize dire threats
against credit card companies that process payments made
through Backpage’s website, including threats of prosecu-
12 No. 15-3047
tion (albeit not by him, but by other enforcement agencies
that he urges to proceed against them), in an effort to throttle
Backpage. See Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at
67. For where would such official bullying end, were it per-
mitted to begin? Some public officials doubtless disapprove
of bars, or pets and therefore pet supplies, or yard sales, or
lawyers, or “plug the band” (a listing of music performances
that includes such dubious offerings as “SUPERCELL Rocks
Halloween at The Matchbox Bar & Grill”), or men dating
men or women dating women—but ads for all these things
can be found in non-adult sections of Backpage and it would
be a clear abuse of power for public officials to try to elimi-
nate them not by expressing an opinion but by threatening
credit card companies or other suppliers of payment services
utilized by customers of Backpage, or other third parties,
with legal or other coercive governmental action.
With very limited exceptions, none applicable to this
case, censorship—“an effort by administrative methods to
prevent the dissemination of ideas or opinions thought dan-
gerous or offensive,” Blue Canary Corp. v. City of Milwaukee,
251 F.3d 1121, 1123 (7th Cir. 2001), as distinct from punish-
ing such dissemination (if it falls into one of the categories of
punishable speech, such as defamation or threats) after it has
occurred—is prohibited by the First Amendment as it has
been understood by the courts. “Threatening penalties for
future speech goes by the name of ‘prior restraint,’ and a
prior restraint is the quintessential first-amendment viola-
tion.” Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009).
The Supreme Court, in enjoining a state commission from
sending threatening letters to distributors of books that the
commission deemed obscene, found that the “notices,
phrased virtually as orders, reasonably understood to be
No. 15-3047 13
such by the distributor, invariably followed up by police vis-
itations, in fact stopped the circulation of the listed publica-
tions.” Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 68. The
court held the state’s “system of informal censorship” un-
constitutional, pointing out that “though the Commission is
limited to informal sanctions—the threat of invoking legal
sanctions and other means of coercion, persuasion, and in-
timidation—the record amply demonstrates that the Com-
mission deliberately set about to achieve the suppression of
publications deemed ‘objectionable’ and succeeded in its
aim.” Id. at 67. The distributor of the plaintiffs’ books, corre-
sponding to the credit card companies in this case, received
first from the Commission a written request for ”coopera-
tion” and then “follow up” visits from police, corresponding
to the follow-up calls promised in Sheriff Dart’s letter. Id. at
63, 68. The distributor bowed to the Commission’s demand
“rather than face the possibility of some sort of a court action
against ourselves, as well as the people that we supply.” Id
at 63. That is like this case, yet the district court denied
Backpage’s motion for a preliminary injunction that would
have required Sheriff Dart to desist from attempting to in-
timidate, by threatening legal action against, companies that
provide payment services to customers of Backpage.
It might seem that large companies such as Visa and
MasterCard would not knuckle under to a sheriff, even the
sheriff of a very populous county. That might be true if they
derived a very large part of their income from the company
that he wanted them to boycott. But they don’t. Backpage’s
monthly revenue from ”adult” ads was recently estimated at
$9 million and its total revenue in 2014 at $135 million,
whereas the combined net revenue of MasterCard and Visa
in that year exceeded $22 billion. The revenue they derived
14 No. 15-3047
from Backpage’s adult ads must have been a small fraction
of their overall revenue, especially since not all of Back-
page’s ad customers pay for their ads with a MasterCard or
Visa credit card. Yet the potential cost to the credit card
companies of criminal or civil liability and of negative press
had the companies ignored Sheriff Dart’s threats may well
have been very high, which would explain their knuckling
under to the threats with such alacrity.
The district court’s opinion denying the relief sought by
Backpage contains a number of errors. It states, for example,
that the Supreme Court in the Bantam Books case “was care-
ful to note [at 372 U.S. at 71–72 that] its ruling does not re-
quire law enforcement officials to ‘renounce all informal
contacts with persons suspected of violating valid laws pro-
hibiting obscenity.’” This doesn’t help Dart’s case; he didn’t
just make informal contacts with credit card companies;
Backpage is complaining about the formal contacts that he
initiated with those companies in an effort to frighten them
into severing their contracts with Backpage.
In tension with his holding, Judge Tharp’s opinion con-
tains a lucid, indeed compelling, explanation of why Sheriff
Dart’s letter to MasterCard did constitute a threat:
Dart’s letter to the credit card companies could reason-
ably be interpreted as an implied threat to take, or cause to
be taken, some official action against the companies if they
declined his “request” to stop providing a method to pay
for advertising on Backpage.com. Dart did not directly
threaten the companies with an investigation or prosecu-
tion, and he admits that his department had no authority
to take any official action with respect to Visa and Master-
Card. But by writing in his official capacity, requesting a
“cease and desist,” invoking the legal obligations of finan-
No. 15-3047 15
cial institutions to cooperate with law enforcement, and
requiring ongoing contact with the companies, among oth-
er things, Dart could reasonably be seen as implying that
the companies would face some government sanction—
specifically, investigation and prosecution—if they did not
comply with his “request.” This is true even if the compa-
nies understood the jurisdictional constraints on Dart’s
ability to proceed against them directly. As Dart admitted
in the preliminary injunction hearing, his department often
coordinates with other local law enforcement agencies and
sometimes with other states and the federal government.
There is no reason that he could not refer the credit card
companies to the appropriate authority to investigate their
suspected role in facilitating human trafficking. … And
further, in this very case, Dart contacted the Inspector
General of the United States Postal Service and the FBI,
urging them to investigate the lawfulness of alternative
payment methods for Backpage’s sex ads.
Furthermore, Dart’s pre- and post-letter statements are
consistent with (though not conclusive proof of) an at-
tempt at official coercion. The strategy memorandum ex-
pressly recommended appealing to the credit card compa-
nies’ interest in avoiding liability and it cannot be credibly
argued that the references to the federal money laundering
statute and other regulations defining duties of financial
institutions were not intended to suggest that the compa-
nies could face civil or criminal liability for facilitating
payments for unlawful ads placed on Backpage.com … .
And after the letters were sent, Dart’s office was happy to
take credit for “compelling” the companies’ actions. Dart
referred to his letter not as a “request” but as a “demand.”
A “demand” is consistent with his role as sheriff, but not
[with his role as] “a father and a caring citizen.” Finally,
the urgency of the sheriff’s department’s follow-up com-
munications imposed another layer of coercion due to its
16 No. 15-3047
strong suggestion that the companies could not simply ig-
nore Dart.
Yet having thus shown that Sheriff Dart had indeed used
his office as sheriff to intimidate the credit card companies,
Judge Tharp said that “a threat alone is not a prior restraint.
... [T]he threat must produce some ‘consequence.’ … And
while the Court [that is, Judge Tharp] does not quarrel with
the premise that the letter precipitated the companies’ ac-
tions … it is far from clear that any threat the letter may have
contained caused the companies’ action” (emphases in orig-
inal). Maybe, the judge suggested, the letter and other
threatening actions taken by Sheriff Dart and his underlings
merely reminded the credit card companies that they “simp-
ly did not want to do business with a website where adver-
tisers peddle flesh.” And therefore, the judge concluded,
Backpage has a “small likelihood of success on the merits” of
its suit against the sheriff.
Had the companies not known that “advertisers peddle
flesh” on Backpage, the judge’s point would have been well
taken. But of course they knew about the nature of the ad-
vertising on Backpage—everyone does—without having to
be told by Sheriff Dart. He didn’t educate them about the na-
ture and possible consequences of advertising for sex; he
told them to desist or else. If Judge Tharp had been correct in
crediting the companies with “ceas[ing] doing business with
Backpage.com because they did not want their products to
be associated with the content posted there,” they would
have ceased doing business with it years before. Backpage’s
content was not a discovery of Sheriff Dart’s. If as the judge
said the credit card companies cut off Backpage “for inde-
pendent business reasons,” why hadn’t they done that years
No. 15-3047 17
earlier? The internal email exchanges of both Visa and Mas-
terCard support our doubts on this point; recall for example
the use of the term “blackmail” in the exchange between Vi-
sa employees.
Unwittingly the judge was suggesting a formula for
permitting unauthorized, unregulated, foolproof, lawless
government coercion. The formula consists of coupling
threats with denunciations of the activity that the official
wants stamped out, for the target of the denunciation will be
reluctant to acknowledge that he is submitting to threats but
will instead ascribe his abandonment of the activity to his
having discovered that it offends his moral principles. The
judge was giving official coercion a free pass because it came
clothed in what in the absence of any threatening language
would have been a permissible attempt at mere persuasion.
See, e.g., Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 66–
67; American Civil Liberties Union v. City of Pittsburgh, 586 F.
Supp. 417, 421–23 (W.D. Pa. 1984).
The judge was further mistaken when he said that “the
Sheriff’s own First Amendment rights are at stake in this
case and the Court must therefore also consider the risk that
erroneously entering an injunction would chill Dart’s own
right to speak out on issues of public concern. Sheriff Dart
has a First Amendment right to publicly criticize the credit
card companies for any connection to illegal activity, as long
as he stops short of threats” (emphasis added). But the judge
himself, in the passages we quoted earlier, had been emphat-
ic that Dart had not stopped short of threats. Those threats
were not protected by the First Amendment; they were vio-
lations of the First Amendment.
18 No. 15-3047
And when, finally, the judge denied that there was evi-
dence that Backpage had been irreparably harmed by its
abandonment by the credit card companies, he again con-
tradicted himself, having noted that in response to that
abandonment “Backpage made its ads free … and no com-
pany can expect to continue to operate without a source of
revenue.” The judge had no basis for conjecturing as he did
that Backpage could avoid that fate by offsetting the loss of
the credit card companies by arranging payments by its cus-
tomers through Bitcoin, checks, money orders, or cash. It
was a weak conjecture, as he quickly acknowledged, saying
that “whether the financial losses that Backpage sustains
while grappling with the withdrawal of credit card proces-
sors will result in Backpage’s demise has not yet been estab-
lished”—but immediately adding: “that may well be the re-
sult”!
Indeed it may. But even short of that, Sheriff Dart’s cam-
paign of suffocation would be bound to cause irreparable
injury to Backpage, and irreparable injury is the essential
condition of preliminary relief, Roland Machinery Co. v.
Dresser Industries, Inc., 749 F.2d 380, 386–87 (7th Cir. 1984),
which is all that is at stake in this appeal. It was Sheriff
Dart’s intention to harm Backpage irreparably; in an email to
members of the press his Director of Communications stated
that Backpage had made its adult ads free in response to the
credit card companies’ decision not to allow their credit
cards to be used to pay for ads on Backpage’s website, but
continued: “We were ready for this and not concerned. It’s
unsustainable for them to maintain all of their lobbying, le-
gal battles and all the money it takes for their server space
without any revenue coming in.” In other words, Backpage
is doomed. That sounds like irreparable harm to us; nor is
No. 15-3047 19
there an offsetting harm of a kind cognizable by the courts
from enjoining the sheriff from violating the First Amend-
ment.
Turning finally to the issue of remedy: Had Sheriff Dart
sued Backpage seeking to enjoin its publication of sex-
related ads, the company’s remedy would have been to seek
a judgment dismissing the suit. But Backpage is the plaintiff,
and its only remedy is an injunction against the sheriff’s vio-
lating its First Amendment rights. As in Elrod v. Burns, 427
U.S. 347, 373–74 (1976), “it is clear … that First Amendment
interests were either threatened or in fact being impaired at
the time relief was sought. The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury. Since such injury was both
threatened and occurring at the time of respondents’ motion
and since respondents sufficiently demonstrated a probabil-
ity of success on the merits, the Court of Appeals might
properly have held that the District Court abused its discre-
tion in denying preliminary injunctive relief.” And so it is
here; given the strength of Backpage’s case, the district judge
erred in denying its motion for a preliminary injunction, and
we therefore reverse the judge’s ruling with directions that
he issue the following injunction (which supersedes the
temporary injunction, pending decision of the appeal, issued
by this court on November 16):
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 insti-
tutions, or other third parties with sanctions intended to
ban credit card or other financial services from being pro-
vided to Backpage.com.
20 No. 15-3047
Sheriff Dart shall immediately upon receipt of this or-
der transmit a copy electronically to Visa and MasterCard
and all other recipients of his June 29, 2015, letter (includ-
ing therefore the directors of and investors in Visa and
MasterCard), as well as to the Chief Inspector of the Unit-
ed States Postal Service.
Backpage.com shall not be required to post a security
bond.
REVERSED AND REMANDED, WITH DIRECTIONS