Jonathan Bilyk Aug. 25, 2015, 2:59pm

A federal judge has declined to slap an injunction on the efforts of Cook County Sheriff Tom Dart to pinch funding to the country’s second largest online classified advertising site, saying the sheriff’s efforts to date to persuade credit card companies to sever business ties with do not cross the line into making illegal threats, meaning Dart is within his constitutional rights and authority to continue advocating against what he sees as Backpage’s promotion of sex trafficking and prostitution as Backpage’s lawsuit against the sheriff continues.

On Monday, Aug. 24, U.S. District Judge John J. Tharp Jr. refused Backpage’s request for a preliminary injunction against Dart and the Cook County Sheriff’s Office, lifting a restraining order in place since Backpage first filed suit against the sheriff in early July.

“There is no clear basis to conclude that the balance of private and public harms favor Backpage’s position or that of the Sheriff,” Tharp wrote in his opinion. “The interests supported by both sides in this dispute are weighty and the scale does not, in the court’s view, tilt decisively in one direction or the other.”

Dallas-based Backpage filed suit July 21 against Dart, asking the court to bar Dart from continuing to work against Backpage.

In its complaint, Backpage alleged Dart has violated the company’s constitutional rights by interfering in Backpage’s business by leaning on credit card companies, such as Visa and Mastercard, to either agree to his request to refuse to process transactions from customers seeking to place ads on or face potential investigative actions themselves.

The credit card companies moved quickly this spring to cut ties with Backpage after receiving letters containing the alleged threat. While the court documents indicate the companies were already intending to do so, the documents also note the sheriff’s office took credit for their decisions to terminate their payment processing agreements with Backpage.

Backpage has called Dart’s actions “extralegal” and “unconstitutional,” declaring the sheriff has exceeded the limits of his authority.

While Tharp had placed a restraining order on the sheriff and his office, the judge said he did not believe Backpage had demonstrated enough to convert the temporary order into a more permanent injunction.

Tharp said he believed the evidence shows Backpage’s “adult services section” does, as Dart has declared, facilitate the advertisement and marketing of “prostitution, including the prostitution of minors.”

While acknowledging Backpage’s efforts to install “filters” to prevent the use of certain words in such advertisements, Tharp said other elements in the advertisements easily work around those filters.

“Symbols, photographs and videos depict what words cannot,” Tharp wrote.

But the judge said Backpage could yet win an injunction against the sheriff, if it could prove Dart had acted in an attempt to use his authority to restrain lawful speech.

And Tharp said letters sent by Dart to the credit card companies “could reasonably be interpreted as an implied threat to take, or cause to be taken, some official actions against the companies if they declined his ‘request’ to stop providing a method to pay for advertising on”

“By writing in his official capacity, requesting a ‘cease and desist,’ invoking the legal obligations of financial institutions to cooperate with law enforcement, and requiring ongoing contact with the companies, among other things, Dart could reasonably be seen as implying that the companies could face some government sanction – specifically, investigation and prosecution – if they did not comply with his ‘request,’” Tharp wrote.

However, the judge said, simply because a jury could perceive Dart’s office’s communication with the companies as a threat “does not mean a jury would make such a finding.”

“Backpage might prevail on this issue, but there is ample reason for doubt,” the judge said.

Compared to other police threats of “legal reprisals” against publishers of unpopular speech in prior cases, “Dart’s oblique, footnoted, references to irrelevant statutes and clunky statements about legal duties seem unlikely to inspire fear of legal reprisals – particularly on the part of large, sophisticated corporations with immediate access to top-tier legal resources and advice,” Tharp said. “On the spectrum between ‘attempts to convince’ and ‘attempts to coerce,’ the letter falls, in the court’s view, much closer to the former.”

The judge noted he believed Dart, even as a leading law enforcement official, is entitled to “use of the bully pulpit to educate and even shame” those he believes are aiding, by legal means, illegal or improper activities.

So long as the sheriff has not illegally issued threats to restrain speech, an injunction would actually curtail Dart’s constitutional rights, Tharp said.

Further, the judge said, Backpage has failed to present any evidence to demonstrate the credit card companies weren’t simply going to end their business relationship with Backpage without any prompting from the sheriff.

He noted American Express had already moved to prohibit the processing of payments for ads in Backpage’s adult services section, and pointed to statements from the other companies indicating intent to do likewise.

And the judge said those statements also indicate there is doubt, even should Backpage prevail in its legal action against the sheriff, those companies intend to ever reestablish their prior relationship with Backpage.

“Once a threat is established, the plaintiff must further prove that the threat restrained speech,” Tharp wrote. “If something other than the government’s threat caused the restraint, then the plaintiff’s case fails.

“And in this case … there is abundant affirmative evidence of voluntary action by the credit card companies to dissociate themselves from Backpage’s seedy offerings.”

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