Posted December 1, 2015 3:02 PM
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Dart pulled up short in online fight

backpage-12-1-15,ph03
Richard A. Posner
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Thomas J. Dart
By Patricia Manson
Law Bulletin staff writer

A federal appeals court Monday blasted Cook County Sheriff Thomas J. Dart for using the power of his office to try to shut down a website that runs classified ads for “adult” services.

The 7th U.S. Circuit Court of Appeals held Dart violated the First Amendment when he coerced Visa and MasterCard into halting their dealings with Backpage.com LLC.

Dart has the right as a citizen and father to “denounce Backpage to his heart’s content” for running ads for escorts, strippers, dominatrixes and phone sex, a three-judge panel of the court wrote.

Even in his official capacity as sheriff, it wrote, “the sheriff can express his distaste for Backpage and its look-alikes.”

But there are limits on what a government entity like the sheriff’s office may say, the panel wrote.

“It is not permitted to employ threats to squelch the free speech of private citizens,” Judge Richard A. Posner wrote for the panel.

And that is what Dart did, Posner continued, when he sent a letter to Visa and MasterCard demanding they “cease and desist” from letting their credit cards be used to place ads on Backpage and similar websites.

The letter contended the ads are purchased by sex traffickers, Posner wrote, and suggested Visa and MasterCard could be prosecuted for money laundering for processing payments made by those purchasers.

Visa and MasterCard had previously received similar letters of complaint from private citizens, Posner wrote, but had taken no action.

However, he wrote, the credit card companies reacted swiftly to Dart’s letter, cutting off ties with Backpage within days.

“The causality is obvious,” he wrote.

The panel directed U.S. District Judge John J. Tharp Jr. to issue an injunction barring Dart or anyone else in the office from taking any action interfering with Backpage’s relationship with credit card companies.

The injunction will replace a temporary injunction the 7th Circuit imposed on Nov. 16. It will remain in effect while Backpage’s lawsuit accusing Dart of imposing an unconstitutional prior restraint on speech is pending.

A status hearing in the case is set for March 22 before Tharp.

Robert Corn-Revere of Davis, Wright, Tremaine LLP in Washington, D.C., argued before the 7th Circuit in support of Backpage’s request for an injunction.

“The Constitution lays out the basic charter for what the limits of the government are,” Corn-Revere said. “It’s not as if Sheriff Dart didn’t know what the limits were.”

He noted that Dart sued the website Craigslist Inc. in 2009 for allegedly soliciting business for prostitutes by running ads similar to those on Backpage.

Dart lost that suit, he said.

“So Sheriff Dart tried to bypass the law,” Corn-Revere said. “And the 7th Circuit saw his tactics for what they were — essentially lawless.”

Hariklia Karis of Kirkland & Ellis LLP argued the case on Dart’s behalf before the 7th Circuit.

Dart is also represented by Cook County Assistant State’s Attorney Jill V. Ferrara.

“While we are not surprised by this opinion, we are nonetheless disappointed and respectfully disagree with its conclusions,” spokeswoman Sophia Ansari of the sheriff’s office said in an e-mail.

“We look forward to proceeding with this litigation and to doing all we can to protect victims from the horrors of human trafficking.”

Backpage is the second-largest classified ad website in the United States after Craigslist.

Chief Executive Officer Carl Ferrer sold the Dallas-based Backpage to a Dutch company last year.

More than 6 million ads are posted on Backpage each month in categories that include automotive, real estate, jobs, buy/sell/trade, dating and adult.

In June, Dart sent his letter to Visa and MasterCard. Backpage sued the sheriff after the companies blocked their cards from being used to purchase any ads on the website, not just those in the adult category.

Backpage asked Tharp to halt Dart’s campaign against it while its suit was pending, but Tharp denied that request.

Backpage appealed the denial to the 7th Circuit.

In overturning Tharp’s decision, the 7th Circuit panel rejected the judge’s finding that Visa and MasterCard cut ties with Backpage “for independent business reasons.”

Visa and MasterCard would have acted years earlier if they were motivated by financial considerations rather than by Dart’s letter, Posner wrote.

Instead, he wrote, the companies faced the threat of civil or criminal liability as well as negative publicity if they ignored the letter.

Such threats by a government official are not permitted, Posner wrote.

“For where would such bullying end, were it permitted to begin?” he wrote.

Joining the opinion were Judges Kenneth F. Ripple and Diane S. Sykes. Backpage.com LLC v. Thomas J. Dart, No. 15-3047.

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Thomas J. Dart

Cook County Sheriffs Office
Daley Ctr —Suite 704
Chicago, IL 60602
(Cook County)

312 603-6444 (voice)

Jill V. Ferrara

Civil Actions Bureau Cook County States Attorney
500 Daley Ctr
Chicago, IL 60602
(Cook County)

312 603-5450 (voice)

Hariklia Karis

Kirkland & Ellis LLP
300 N La Salle St
Chicago, IL 60654
(Cook County)

312 862-2000 (voice)

Posner; Richard A.
U.S. Court of Appeals

219 South Dearborn Street
Chicago, IL 60604
3124355806 (phone)

Ripple; Kenneth F.
U.S. Court of Appeals

219 South Dearborn Street
Chicago, IL 60604
3124355510 (phone)

Tharp; John J. Jr.
U.S. District Court

219 South Dearborn Street
Chicago, IL 60604
3124355573 (phone)

Sykes; Diane S.
U.S. Court of Appeals

219 South Dearborn Street
Chicago, IL 60604
3124355824 (phone)

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