Supreme Court declines sheriff’s appeal in Backpage case

The Supreme Court refused Monday to hear an appeal from Illinois Sheriff Thomas Dart, letting stand a lower court order shuttering Dart’s efforts to disrupt online sex ads linked to trafficking of minors.

In June 2015, Dart sent letters to Visa and MasterCard asking them not to process payments to the classified advertising website Backpage.

“As the sheriff of Cook County, a father, and a caring citizen, I request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage.com, which we have objectively found to promote prostitution and facilitate online sex trafficking,” Dart wrote.

The companies complied within 48 hours. American Express had ceased doing business with Backpage earlier in 2015 before Dart began his campaign.

Backpage sued Dart, calling his actions censorship of the free-speech rights of the site and its users “through an informal process of coercive threats or insinuation,” though he made no mention of legal consequences if the credit card companies refused to comply. A federal judge sided with Dart, stating his letters were protected by the First Amendment. But a federal appeals court reversed the ruling, agreeing with Backpage.

Don Herzog, a First Amendment specialist at the University of Michigan Law School, agreed Dart used his office as a threat. He told Bloomberg, “Imagine a cop says to you, ‘Lady, get that Clinton sign off your lawn, or I’ll bust you.’ Just because you choose not to, that doesn’t make the threat OK.”

It seems unlikely the credit card companies will reinstate their services; none have since the 7th U.S. Circuit Court of Appeals ruled last November. (After the credit card companies pulled out, Backpage ran sex ads for free, charging only for extra visibility on a page via bitcoin, check, or money order.)

Two weeks ago, the high court declined a Backpage appeal to block subpoenas issued by the U.S. Senate, which is probing the company’s alleged role in facilitating child trafficking.

Backpage may face another Supreme Court challenge if the justices hear a case involving three Washington women who were trafficked at age 15. Traffickers placed ads for sex with the women on Backpage. They allege Backpage did not merely host their advertisements, but helped develop the content of those advertisements so their traffickers would avoid prosecution. If proven true, Backpage would not be protected from immunity because it coached pimps on how to post illegal, exploitative ads.

Though disappointed the court declined to hear the case, Dart’s office said in a statement, “We will continue our defense in the United States District Court in Chicago, where we intend to show that our actions and advocacy have always been to protect the public and fight for the women and children who are in need of our help.”