Last Monday, the 7th Circuit U.S. Court of Appeals granted online classifieds site Backpage their request for a preliminary injunction against Cook County Sheriff Tom Dart, ordering the sheriff to stop any attempts to influence financial services companies that do business with Backpage. Dart had previously demanded Mastercard and Visa stop processing payments for the site. Backpage contended his actions were an abuse of his position as a government offical. Backpage had appealed a federal district court decision in Dart's favor. In his opinion, Judge Richard Posner sided with Backpage and excoriated Dart's behavior as "official bullying." He cited that Dart had used official letterhead, signed himself in his capacity as a law enforcement official, and circulated strategy memos with his staff prior to sending the letters as key factors in the decision that Dart had improperly used his powers to coerce credit card companies into cutting ties Backpage.
While federal criminal charges have been pursued against the owners of escort advertising sites myRedBook and Rentboy, general classified ad sites are more of a challenge for law enforcement. Having failed with the direct route when he sued Craigslist in 2009, Dart chose this time to use an indirect tactic and go after Backpage's money. Not only did the appeals court find that this indirect method was violation of Backpage's free speech rights, it affirmed the protections of Section 230 of the Communications Decency Act, which means law enforcement can't go after a website for what its users do,
Both free speech advocates and sex workers celebrated the court's ruling. Several organizations that lobby on free speech issues, including the Cato Institute and the Electronic Frontier Foundation (EFF), had filed briefs supporting Backpage.
"You can't have government officials going around threatening private individuals or private companies in order to get them to act in a way that the government officials want," said EFF staff attorney Sophia Cope. "That indirect, more veiled threat is actually just as much considered censorship under the First Amendment as direct action and taking down content or preventing speech form happening."
Although Dart's tactics were not direct censorship, Cope said holding online intermediaries like Backpage responsible for the actions of their users restrains speech. "The problem is often that the idea of this extenuated liability can really have a chilling effect on websites that are generally trying to provide a legal and useful service to the public," Cope said. "There might be people who use the platforms in illegal ways, but that doesn't mean the platforms themselves can be held liable."
When Backpage posters use the site for criminal purposes, the judicial interpretations of the site's liability vary. Courts in Massachusetts and Washington came to opposing conclusions on two civil suits brought by victims who seek damages from Backpage. In November, Backpage CEO Carl Ferrer was subpoened to testify before a Senate subcommittee hearing on trafficking. When he didn't appear—because he was out of the country, his attorneys informed the committee—senators threatened to pursue contempt charges. (In response to a request for comment for this story, Backpage's lead legal counsel Liz McDougall said, "As this is ongoing litigation, we have no comment currently.")
Backpage also faces the untested consequences of the SAVE (Stop Advertising Victims of Exploitation) Act, passed into law as part of the Justice for Victims of Trafficking Act last spring. The law makes advertising or financially benefitting from commercial sex with a minor or person compelled by force, fraud, or coercion a crime and requires knowledge of the person's status, but doesn't distinguish between the person placing the ad and the venue where the ad is placed.
"I think there is a question as to whether or not the SAVE Act is constitutional under the First Amendment," Cope said. "It remains to be seen how prosecutors will use the SAVE Act, whether it's Backpage or some other website. It remains to be seen what kind of defense they put forward. I would be shocked if they didn't put forward a First Amendment defense."
Backpage's temporary inability to take credit card payments motivated sex worker advocates to educate women on how the laws redefine advertising. Tara Burns is a researcher and writer who runs Alaska's Community United for Safety and Protection (CUSP), an organization made up of both former trafficking victims and people who have worked in the sex industry by choice. She said the credit card haul sent users into chaos. According to Burns, they couldn't navigate Bitcoin payments or the site's pay-by-mail option.
"Several people contacted me and asked if I would post their ads, and I'm like, 'No, I can't, because that's sex trafficking,'" Burns said. "Then once people figured out how to mail in money or use Bitcoin, then they would have other people asking them to post their ads, and I kept telling people, 'Don't do it, it's sex trafficking.'"
In his opinion, Judge Posner pointed out that not all sex work is illegal, or even done in person. "Nor is Sheriff Dart on solid ground in suggesting that everything in the adult section of Backpage's website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent)," he writes. "It's not obvious that such conduct endangers women or children." He also briefly notes that "there are no reliable statistics on which Sheriff Dart could base a judgment that sex trafficking has been increasing in the United States."
For sex workers and sex worker advocates, the decision's free speech implications were less important than Posner's recognition of the different types of sex work and willingness to question Dart's assertions about sex trafficking—a response that was new to them in both tone and content.
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"It was really unique and wonderful to see Judge Posner recognize that all of the legal forms of adult work that are advertised on Backpage are getting swept up in this anti-trafficking panic," said Katherine Koster, director of communications for the Sex Workers Outreach Project.
"It was exciting to see recognition that what Dart did was wrong, and that an injunction is appropriate," Koster said. "But also recognizing how this fits into sex work in particular and the anti-trafficking war framing all forms of illegal and legal forms of sex work as sex trafficking, recognizing that that is harmful—that is really rare."
Dart could appeal the ruling to the Supreme Court, but he's yet to announce his plans. When contacted for comment, the Cook County Sheriff's office responded with a statement from their office instead of Dart: "While we are not surprised by this opinion, we are nonetheless disappointed and respectfully disagree with its conclusions. We look forward to proceeding with this litigation and we will continue to do all we can to protect victims from the horrors of human trafficking."