It's well known that the First Amendment prohibits government officials from acting as censors. So it should surprise no one that officials seeking to suppress speech of which they disapprove choose their words carefully. When Cook County Sheriff Thomas Dart wrote letters to Visa and MasterCard "request[ing]" that they "cease and desist" from allowing their credit cards to be used to purchase any ads on online commerce site Backpage.com, citing concerns about sex-related ads in Backpage's "adult" section, Dart did not expressly say that he would pursue legal sanctions against the companies if they did not comply. Thankfully, the Seventh Circuit Court of Appeals in Backpage.com v. Dart identified the letters as the acts of intimidation that they, in fact, were and ordered the sheriff to cease his coercive crusade.
Some background: Backpage provides an online forum for classified ads, including rentals, real estate, jobs, and "adult." The adult section includes ads for phone sex, stripteases, "dom[ination] and fetish," and body rubs. Importantly, this section is not different in kind from what one finds on Craigslist, which Dart attempted to sue in 2009, claiming that it facilitated prostitution and constituted a public nuisance. The suit was thrown out.
Dart opted for a different tactic with Backpage. Rather than sue Backpage, he sent ominous letters to Visa and MasterCard. Upon receiving these letters, Visa and MasterCard refused to process transactions in which their credit cards were used to purchase any ads on Backpage, even those that advertised indisputably legal goods and services. Backpage's very existence was threatened, and it sought relief from the courts, requesting an injunction from a federal district court to stop the sheriff from depriving the company of ad revenues and scaring off its payments-service providers. Dart argued that he was merely exercising his First Amendment right to express his disgust with sex-related ads, not threatening legal sanctions. The district court denied the injunction, concluding that Dart's letters, though "consistent with ... an attempt at official coercion," may not have actually intimidated the credit card companies into cutting their ties with Backpage.
On Monday, the Seventh Circuit reversed and ordered the district court to issue an injunction against Dart. Judge Richard Posner, writing for a three-judge panel, went through the letter Dart sent to both Visa and MasterCard line-by-line, making plain that, although the letter took the form of a request, it was in substance a demand backed by a threat of official punishment. Government officials are certainly free to express their views about the immorality of domination and fetish and may even campaign as private citizens against businesses that they deem morally compromised. But they may not send letters on their office's stationery that begin with "As the Sheriff of Cook County"; state that "it has become increasingly indefensible for any corporation to willfully play a central role in an industry that reaps its cash from the victimization of women and girls"; refer specifically to federal money laundering statutes; request that such corporations "cease and desist" from specified activities; and end with instructions to "please provide me with contact information for an individual that I can work with on this issue"--without those letters' being understood as legal threats. The inescapable thrust of such letters is: Do as I say, or else.
Properly understood as threats, Dart's letters raise profound constitutional concerns, to put it mildly. Commercial advertising is protected by the First Amendment, much of the content on Backpage (and at least some of the content in the adult section) is concededly legal, and the Supreme Court has roundly rejected prior restraints--threats to penalize people for future speech--even where that speech is constitutionally unprotected and may be punished after the fact. More broadly, allowing government officials to engage in actions calculated to drive entire businesses into the ground simply because they disapprove of certain items being sold would create a lawless status quo in which Americans' rights could be extinguished on the basis of officials' personal preferences. As Judge Posner observed, "[W]here would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets, and therefore pet supplies."
The Seventh Circuit also properly rejected the district court's reasoning concerning the impact of Dart's letters. The district court speculated that the letters may have quickened the conscience of the credit card companies--that they may not have caved to any threat in the letters but rather decided they "simply did not want to do business with a website where advertisers peddle flesh." Such speculation, Judge Posner pointed out, not only flies in the face of the facts (the companies knew perfectly well the nature of the advertising on Backpage) but would provide a "formula for permitting unauthorized, unregulated, foolproof, lawless government coercion." Specifically, officials could suppress disapproved activities by coupling threats with "denunciations of the activity that the official wants stamped out," confident that if the coercion had its desired effect, it could be cast as "a permissible attempt at mere persuasion."
Government officials don't do things without a reason, but their reasons aren't always constitutional. And when they seek to accomplish unconstitutional goals, they can be counted upon to do precisely what Sheriff Dart did here: frame their actions in innocuous terms. Every constitutional case thus requires fact-sensitive, impartial inquiry into the government's true ends. Judges must always be prepared to say--as Judge Posner did to Dart--"That's not true." Such judicial engagement is necessary not only to identify censorship masquerading as suasion, but to protect Americans from government coercion in all areas of life.