Seventh Circuit orders Dart to back off, pending appeal of injunction denial

By Jonathan Bilyk | Nov 17, 2015

A federal appeals court has ordered Cook County Sheriff Tom Dart to stop efforts to financially squeeze online classifieds site, which the sheriff says is used to facilitate sex trafficking, until the court can decide whether or not it will let stand a lower court’s decision to allow Dart’s office to continue its campaign against the website.

On Monday, Nov. 16, the Seventh Circuit Court of Appeals slapped an injunction on Dart, ordering him and all those working for him to stop contacting credit card companies and others in an effort to persuade them to stop doing business with Backpage.

“Sheriff Dart, his office and all employees, agents, or others who are acting or have acted for or on behalf of Dart are enjoined from taking any actions to formally or informally request, direct, coerce or threaten credit card companies, processors, financial institutions or any other third parties to discontinue, terminate, disallow or interfere with credit card or other financial services to,” the order said.

The injunction would remain in place until the appellate proceedings in the case are completed or until the Seventh Circuit orders otherwise, the court order said.

The order comes about two months after Backpage filed a notice Sept. 17 of its intent to appeal U.S. District Judge John Tharp’s Aug. 24 decision denying the classified advertising company a preliminary injunction the company had sought to prevent Dart from working against them.

That decision came as part of proceedings surrounding Dallas-based Backpage’s lawsuit against the Cook County Sheriff. Filed in July, the lawsuit alleged Dart had acted outside the bounds of the law and the U.S. Constitution in leaning on credit card companies, such as Visa and Mastercard, to cut financial ties with Backpage and financially cripple and ultimately shutter the online company.

Dart and his office had moved to discourage the credit card companies from doing business with Backpage over the sheriff’s concern the country’s second largest provider of online classified advertising had not done enough to aid law enforcement in purging from its pages advertising posted by sex traffickers in Backpage’s “adult services” or “erotic services” section. Soon after receiving letters from the sheriff’s office this spring expressing Dart’s stance and containing what Backpage said was a threat of further potential regulatory and investigatory actions, the credit card companies moved quickly to place Backpage among its lists of companies with which they will not do business.

That, in turn, prompted Backpage’s lawsuit, in which the company alleged Dart’s offices action amount to an “extralegal” and “unconstitutional” method to achieve goals the law does not allow the sheriff to achieve directly. Backpage said this represented a violation of its constitutional rights.

After imposing a temporary restraining order on the sheriff, Tharp ruled in favor of the sheriff, saying he believed the evidence indicated the credit card companies were likely going to cut ties with Backpage with or without a letter from Dart, meaning the court does not need to move to stop any harm from befalling Backpage which had not already occurred.

“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.”

Earlier this month, the Seventh Circuit had declined to put a stay on the case pending the appeal, allowing discovery to continue.

A status hearing is set for Nov. 19.

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