Backpage.com, LLC v. Thomas Dart
807 F.3d 229
| 7th Cir. | 2015Background
- Backpage.com operated classified ads including an "adult" section subdivided into categories (escorts, fetish, phone sex, etc.).
- Cook County Sheriff Thomas Dart sent an official June 29 letter to Visa and MasterCard demanding they "cease and desist" allowing their cards to pay for ads on sites like Backpage, invoking legal duties and intimating potential liability and investigations.
- Following Dart’s letter and follow-up communications from his office, Visa and MasterCard stopped processing payments for all Backpage ads; Backpage alleges this substantially harmed its revenue.
- Backpage sought a preliminary injunction to stop Dart from coercing payment processors; the district court denied relief and Backpage appealed.
- The Seventh Circuit found Dart’s official communications reasonably construed as coercive threats (prior restraint / intimidation) that produced the companies’ withdrawal and therefore violated Backpage’s First Amendment rights; the court reversed and ordered an injunction barring Dart from coercing or threatening third parties to cut off services to Backpage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sheriff Dart’s letter and follow-up communications violated Backpage’s First Amendment right by coercing third parties to stop providing services | Dart used his official office to threaten legal sanctions and organize a boycott, coercing processors and suppressing protected speech | Dart was exercising free speech and government speech; he denied threatening prosecution and argued he only expressed views and concerns | Court held the letter and follow-up amounted to government coercion/intimidation (prior restraint) and violated the First Amendment |
| Whether credit card companies’ cessation of services was caused by Dart’s conduct and thus produced a constitutionally cognizable consequence | Dart’s letter and staff follow-up produced Visa/MasterCard’s withdrawal, causing irreparable harm to Backpage | District court suggested companies may have acted for independent business reasons; Visa denied feeling threatened | Court concluded causation was plausible: the official letter and follow-up communications prompted processors’ action |
| Whether Section 230 or potential criminal statutes justified Dart’s threats or immunized third parties from coercion claims | Backpage argued intermediaries are generally not liable under §230; processors shouldn’t be treated as accomplices and thus are improperly threatened | Dart cited possible duties under money‑laundering reporting and implied potential legal exposure for processors | Court noted §230 and that processors were remote intermediaries and that Dart’s invocation of criminal statutes improperly suggested accomplice liability, but primary ruling centered on coercion, not §230 adjudication |
| Whether irreparable harm and likelihood of success on the merits supported preliminary injunctive relief | Backpage asserted loss of payment processing caused irreparable injury to speech and business and showed strong likelihood of success on First Amendment claim | Dart argued injunction would chill his speech and that Backpage hadn’t proven irreparable harm | Court found threatened/ongoing First Amendment injury constituted irreparable harm and Backpage showed sufficient likelihood of success; injunction warranted |
Key Cases Cited
- American Family Ass’n, Inc. v. City & County of San Francisco, 277 F.3d 1114 (9th Cir.) (government threats to third parties can violate First Amendment)
- Okwedy v. Molinari, 333 F.3d 339 (2d Cir.) (distinguishes persuasion from coercion by public officials)
- Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (informal governmental coercion/requests can effect prior restraint)
- Doe v. GTE Corp., 347 F.3d 655 (7th Cir.) (§230 intermediaries generally not treated as publishers or liable for third‑party content)
- Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir.) (application of §230 to classifieds platforms)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury)
- Fairley v. Andrews, 578 F.3d 518 (7th Cir.) (prior restraint and injunctive standards)