Backpage.com has struck back at Cook County Sheriff Thomas Dart, suing him in federal court in Illinois for "effecting an informal extralegal prior restraint of speech without due process." Earlier this month, after Dart wrote letters to Visa and MasterCard, the two giant payment networks shut down their payment networks for the purpose of buying ads on Backpage.
Since Craigslist abandoned adult personal ads following pressure from law enforcement officials and politicians, Backpage has become the internet's primary location for the ads — and the second largest classifieds site after Craigslist — and a frequent target of politicians and law enforcement officials, like Dart, who claim it facilitates sex trafficking and prostitution.
Since the shutdown earlier this month, Backpage has tried to work around it, allowing users to buy "credits" which could be used to purchase ads, then making their adult ads free, and letting customers pay through money orders or cash sent in to a Texas PO Box. A BuzzFeed reporter was unable to use a Visa card to buy credits.
Backpage's suit against Dart describes his efforts to persuade Visa, MasterCard, and American Express to cut off classified sites as a response to a failed effort to go after these sites using typical law enforcement means, including a 2009 suit where he alleged the Craigslist facilitated prostitution.
Backpage, like Craigslist, has been successful in batting away legal challenges stemming from hosting adult ads because federal law, specifically the Communications Decency Act, tends to protect web site administrators from responsibility for content posted by users.
The suit says that Dart had "targeted" Backpage since Craigslist shut down its adult personal ads in September, 2010 and then started communicating with Backpage in 2011 by requesting that the adult personal ads be removed from the site entirely.
After Backpage explained its own screening policies — including requiring payment by credit and debit cards and providing information in response to law enforcement requests — Backpage says that Dart thanked them for their "work done so far" and their "candor and sincerity," but by January, 2012, again demanded they remove their adult category.
Backpage says Dart's latest action is an example of "prior restraint," arguing that it's "a government official... banning a forum of speech simply because he dislikes it." Backpage says Dart used "false accusations, innuendo, and coercion," to effectively cripple Backpage's business and infringed on the site and its user's free speech rights. Backpage is seeking a declaration that Dart's actions were unlawful, an injunction that would force him to cease his campaign against Backpage and retract his letters, along with damages. Backpage has requested a hearing on Thursday over the injunction.
Rainey Reitman, the activism director of the Electronic Frontier Foundation, criticized MasterCard and Visa for removing support for Backpage, writing earlier this month, "We don't need Visa and MasterCard to play nanny for online speech. Payment processors and banks shouldn't be in the position of deciding what type of online content is criminal or enforcing morality for the rest of society."
In a statement, Backpage's general counsel Liz McDougall said "Sheriff Dart's attempt to censor indirectly speech that he cannot censor directly is an unconstitutional prior restraint of speech without legal authority or due process. To give it effect would create a dangerous precedent for elected government officials of any level to become independent censors of online speech nationally and globally based on their personal morals, beliefs or whims."
Backpage has not, however, initiated legal action against Visa and MasterCard, who chose to remove support for Backpage after receiving letters from Dart in which he alleged the site was facilitating illegal activity.
Dart's office is not backing down from its years-long campaign against Backpage. "It is regrettable that Backpage has dedicated so many resources to lawyers and lobbyists when they could be partnering with law enforcement to seek justice for sex trafficking victims," the office said in a statement. "Sheriff Dart requested that the credit card companies voluntarily do what Backpage will not – disassociate their business from online sex trafficking in the name of good corporate citizenship."
Read Backpage's complaint
Matthew Zeitlin is a business reporter for BuzzFeed News and is based in New York. Zeitlin reports on Wall Street and big banks.
Contact Matthew Zeitlin at firstname.lastname@example.org.
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