Saying the move could chill future defenses against overreaching government officials, attorneys who represented Backpage.com in litigation against the Cook County Sheriff’s Office’s attempts to shut down the classified ad site linked to sex trafficking, are asking a Chicago federal judge to reject Cook County Sheriff Tom Dart’s request they, too, be sanctioned for allegedly furthering Backpage’s alleged attempt to mislead the court.
In an April 26 motion, Sheriff Dart asked U.S. District Judge John J. Tharp Jr. to conduct an evidentiary hearing on sanctions against Backpage.com LLC’s attorneys and permit “supplemental briefing on the appropriateness and amount of sanctions.” He said lawyers for the Dallas-based online classified advertising site should have known the company was lying to the court as it tried to block his office from working to discourage credit card companies from processing payments for the site.
In the same motion, Dart cited an April 5 federal plea agreement from Backpage CEO and owner Carl Ferrer admitting “its entire First Amendment civil rights case was based on untrue facts from the beginning, and thus a hoax, a fraud on this Court, a fraud on the Seventh Circuit Court of Appeals and a fraud on the United States Supreme Court.”
Cook County Sheriff Tom Dart
On May 17, attorneys from the firm of Davis Wright Tremaine, with offices in Seattle and Washington, D.C., filed a motion opposing the sheriff’s sanctions request, saying Dart’s asserting the case was a hoax “is fundamentally wrong, and is no more than a reincarnation of the same ‘illegality’ defense Sheriff Dart has attempted to advance and the Court has rejected repeatedly because it is based on a fatally flawed premise.”
Ferrer’s plea, the firm continued, shouldn’t “retroactively cure the sheriff’s illegal actions” to hamper Backpage’s business in 2015, a reference to Dart’s communications to the Visa and MasterCard, demanding the credit card companies stop allowing their cards to be used to place Backpage ads. Further, it said Dart’s motion attempts to pit Ferrer’s plea agreements against earlier sworn testimony. Despite the change of course from the Backpage CEO, the Davis Wright Tremaine lawyers said the plea agreements can’t be used as a basis to sanction lawyers. DWT withdrew from representing Backpage on April 25.
DWT said Dart repeatedly argued his actions were legal because the ads he was targeting were illegal, and therefore not protected by the First Amendment. That position is faulty, the firm stated, because: “The Seventh Circuit articulated the straightforward legal principle that controls this case: (a) public official who tries to shut down an avenue of expression and ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment.”
DWT further contended that whether or not the credit card companies responded to Dart - as they did, within 48 hours, prompting a Dart press release touting his accomplishment - the threat itself constituted a First Amendment violation against which Backpage attorneys were trying to protect.
The legal theories DWT used in representing Backpage “were far more than plausible,” the firm maintained, “they were strong and they were meritorious,” unlike other applications where sanctions were deemed appropriate because it could be proven attorneys actually knew their theories were meritless.
Former Backpage counsel Schiff Hardin, of Chicago, also filed a motion May 17. Although not a Dart target, it said “professional responsibility nonetheless compels it to highlight the risk Dart’s motion presents. … If lawyers are intimidated from pursuing First Amendment claims on behalf of their clients, the rights of those clients are significantly diminished, the ability to challenge unconstitutional intrusions is hampered and free speech is chilled.”
Representing DWT in the matter is Jenner & Block LLP, of Chicago.