Online classifieds site Backpage.com has scored a victory in its dispute with Cook County Sheriff Thomas Dart, who recently succeeded in convincing major credit card companies to cut the site off from their payment networks.
A federal judge in Illinois granted Backpage.com a temporary restraining order as part of a suit the company filed against Dart. The suit accused the sheriff of restricting their free speech by asking Visa and MasterCard to stop processing payments for the site. Both networks complied with his request.
John Tharp, a federal district judge in the Northern District of Illinois, granted a restraining order that would stop Dart from further efforts to cut off Backpage from the financial system.
"Dart's judgment that the escort ads are illegal — and therefore not protected by the First Amendment—was not tested with due process or subjected to any oversight because of the informal channels through which he censored them," Tharp said. "Backpage has also made a sufficient showing of irreparable harm... free-speech injuries are irreparable almost by definition."
"Backpage has established a more-than-negligible likelihood of success on
the merits of its claim that Dart's informal lobbying of the credit card companies violated the First Amendment by imposing an informal prior restraint on the advertisements hosted by Backpage.com," Tharp said in his order.
Backpage general counsel Liz McDougall told BuzzFeed News the judge's order "is an important reaffirmation of the critical role of the Internet in free speech and the continued evolution of e-commerce. It serves also as an emphatic reminder that government officials cannot undertake to destroy websites even when they disagree with hosted speech."
Sheriff Dart did not respond to a request for comment. In an interview with BuzzFeed News earlier this month, he explained why he resorted to appealing directly to the credit card companies. "I don't want to say we exhausted all the other strategies, but we tried the lawsuit angle and that did not work, we tried ongoing negotiation with Backpage about making this a responsible site that was not facilitating crimes that got us absolutely nowhere," Dart said.
"I was stunned at how quickly Visa and MasterCard moved to say they weren't going to be involved in that anymore, they were incredible corporate citizens," he said.
The company is also seeking an injunction that would get Dart to withdraw his letters to Visa and MasterCard. Backpage's lawyers from Paul Hastings LLP claimed the company's business was "imperiled" by action and that its users "are in imminent jeopardy of losing a forum for protected (as well as unprotected) speech," Tharp said. Backpage also wants a court ruling saying that Dart's requests to the credit card networks were unlawful.
Dart has long contended that Backpage facilitates sex trafficking and prostitution through its adult classifieds sections. Backpage has insisted it is shielded by federal laws that protect internet companies from being held legally responsible for content uploaded by their users.
In response to Dart's letters that led to Visa and MasterCard cutting off Backpage, the site scrambled to stay alive, offering "credits" users could buy and then exchange for ads and then by making adult ads free and allowing customers to pay by cash or money orders sent to a post office box in Texas.
Judge Tharp also chided Dart, saying that he "has made no argument, and has provided no evidence, that prostitution, trafficking, and sexual exploitation of minors will be reduced significantly" by the taking down Backpage.
"We are not surprised that the judge granted this temporary restraining order," said Cara Smith, the chief strategist at the Sherrif's office. "We will certainly abide by and look forward to continuing this litigation." Smith also described the litigation as "unprecedented" and that the office "feels confident in its position."
Dart has criticized existing laws for not giving law enforcement the tools to go after sites like Backpage, which is the second largest web classifieds service. Since Craigslist stopped hosting adult personals and escort ads in 2010, Backpage has been the web's main source for those listings.
There will be a hearing to schedule a hearing Backpage's request for a further injunction on Tuesday.
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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