Judge slaps restraining order on Cook County Sheriff over efforts to persuade credit card companies to cut ties with Backpage.com

By Jonathan Bilyk | Jul 25, 2015

A federal judge has put a hold on any further actions Cook County Sheriff Tom Dart might take to pressure credit card companies to stop doing business with Backpage.com over concerns the nation’s second largest online classified advertising board is being used to promote prostitution and sex trafficking.

Friday, July 23, U.S. District Judge John J. Tharp Jr. slapped a 10-day temporary restraining order (TRO) on Dart’s office, forbidding the sheriff and his representatives from “taking any actions … to formally or informally request, direct, persuade, coerce or threaten credit card companies, processors, financial institutions or any other third parties to discontinue, terminate, disallow or interfere with payment or services to Backpage.com.”

The TRO will remain in place until at least July 28, when the judge has scheduled a hearing to discuss a potential preliminary injunction, which Backpage.com had requested while it pursues its lawsuit against Dart for allegedly violating the company’s First Amendment rights by allegedly interfering in Backpage’s business and persuading credit card companies to no longer process payments for ads purchased on Backpage’s site.

Tharp said he believed Backpage.com had “sustained its burden of demonstrating it has a more than negligible likelihood” of successfully pressing its case against Dart, and would “suffer irreparable harm” to its business without a TRO.

The decision comes quickly on the heels of a lawsuit filed July 21 by Dallas-based Backpage.com against Dart, asking the court to slap the sheriff with an injunction preventing him from continuing with his efforts against Backpage and to withdraw allegedly threatening requests Dart made of the credit card companies to work with him or face potential investigative actions themselves.

In its complaint, Backpage said Dart has circumvented the law and exceeded his authority in taking “an extralegal and unconstitutional” action to pressure the credit card companies in an attempt to “cripple” and ultimately shutter the website in retribution for Backpage’s refusal to follow the lead of rival classifieds site Craigslist and remove the section of its website under which “adult services” can be advertised.

The lawsuit followed the actions by first American Express and then Visa and Mastercard earlier in July to place Backpage among the merchants for whom it will not process payments. That move, in turn, came after Dart sent letters to the credit card companies demanding they “defund” and “sever ties with Backpage.com.”

Dart’s action to hit Backpage in the purse have followed years of public efforts by Dart to remove advertising linked to prostitution and other criminal sex trafficking activity.

In its complaint, Backpage noted Dart’s failed attempt to sue Craigslist to force it to shut down its “erotic services” category. And the complaint noted failed attempts by other states to outright prohibit such advertising, as courts found the laws unconstitutional.

Backpage contends Dart’s pressure of Visa, Mastercard and American Express is an “out-of-the-box idea” concocted by the sheriff to achieve through financial pressure and threats what the law does not allow him to do directly.

In its complaint, Backpage asserts it routinely works with law enforcement to track and monitor sex trafficking, referring suspicious advertising to police on an ongoing basis.

In public statements following the announcements by Visa and Mastercard regarding their severing of ties with Backpage, Dart has scoffed at that notion, saying Backpage’s resistance to shutting down their adult services section has complicated the efforts of police to investigate and prosecute pimps and others involved in trafficking.

In the wake of the decision by Visa and Mastercard, Backpage said it has been forced to cease charging for ads until the court can decide the matter, as the website has virtually no means of processing payment and users would be unable to post any ads, effectively shutting down the website.

“Providing services for free can only be a temporary measure, however,” the complaint states. “All publishers need revenues to survive, and the First Amendment precludes coercive government actions to choke off revenues to silence speech it disfavors.”

In addition to the injunctions, Backpage has also requested the court award unspecified compensatory and punitive damages from the sheriff.

Backpage is represented in the action by attorneys from the firm of Paul Hastings LLP, with offices in Chicago, Washington, D.C., and San Francisco, and the firm of Davis Wright Tremaine LLP, with offices in Seattle and Washington, D.C.

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