Backpage.com wins restraining order against sheriff in 'escort' ad battle

Aamer Madhani | USA TODAY

CHICAGO—A federal judge on Friday issued a temporary restraining order against the sheriff of the nation’s second biggest county, putting the brakes on his high-profile campaign to persuade credit card companies to cease doing business with online classified site Backpage.com.

The order by Judge John Tharp comes after operators of Backpage filed a lawsuit earlier this week, calling on a federal judge to intervene in their long-running battle with Cook County Sheriff Tom Dart over the web site's adult services ads. Dart successfully lobbied credit card companies to cut off the web site earlier this month, after citing his concerns that Backpage’s adult services section is fueling sex trafficking of minors and vulnerable women.

Backpage says its rights to free speech and due process have been violated by Dart’s actions.

At a hearing on Thursday, Backpage attorney Robert Corn-Revere argued that Dart effectively threatened Visa and MasterCard with potential legal action to force the companies to cease doing business with his client.

Both credit card companies announced they would no longer process transactions for the Dallas-based, Dutch-owned Backpage within 48 hours of receiving separate letters from Dart calling on the companies to end their relationship with Backpage. Attorneys for Dart argue that the letters were simply a request of the credit card companies, and that Dart has no legal leverage over them.

Dart also wrote to Guy Cottrell, chief U.S. postal inspector, earlier this month urging him to "explore all available means to ensure that the U.S. Postal Service is not being used to foster avenues for sex trafficking via Backpage.com."

Tharp was skeptical of the notion that Visa and MasterCard acted spontaneously to cut off Backpage.

“But for purposes of a TRO (temporary restraining order), enough signs point in the other direction,” Tharp wrote in his order. “These companies had worked with Backpage for more than a decade, and they terminated their relationships because of Dart’s letters.”

The restraining order’s request was limited to stopping Dart from any further "defunding" efforts and doesn’t require the credit card companies to restart their relationship with Backpage. Attorneys for the website are also asking that the judge order Dart to rescind the letters, something that he has yet to rule on.

Cara Smith, chief strategist for Dart, said the sheriff’s department is “not surprised by the order” and was now looking “forward to containing this critically important litigation.”

It’s unclear what, if any, effect Friday’s order could have on Visa’s and MasterCard’s decisions to end business with Backpage. Spokesmen for both companies did not respond to requests for comment on the restraining order.

Since being cut off by MasterCard and Visa, Backpage has lost “millions” of dollars of revenue and the long-term viability of the web site is in danger, Corn-Revere said.

Lawyers for Dart argue that ads promoting illegal activity are not protected by the First Amendment. The sheriff argues that the vast majority of ads for escorts on the web site are thinly-veiled promotions for prostitution. Backpage says it works diligently with law enforcement to counter sex trafficking and eliminate advertising promoting prostitution.

“Given that Dart sought to 'defund' Backpage, not just shut down its adult sections, based wholly on the content of some ads, Dart cannot maintain that the First Amendment is not implicated by his actions, even if he were correct that none of Backpage’s 'escort ads' themselves are protected,” Tharp wrote.

The website, which looks similar to Craigslist, has been under pressure from lawmakers and law enforcement for years to end adult services advertisements. Craigslist ceased posting adult and erotic service ads in 2010 after facing pressure from Dart and other officials.

In addition to the adult service ads, people looking to rent apartments, sell a car or advertise a job opening commonly use the website.

Backpage senior counsel Liz McDougall said the order was “an emphatic reminder that government officials cannot undertake to destroy websites even when they disagree with hosted speech.

Since the credit card companies ceased doing business with the website, Backpage has allowed users to post ads for free – leading to an increase in the number of ads being posted on adult section of the web site.

Attorneys for the sheriff pointed to the increased traffic and the fact that users can still pay for ads by bitcoin, check or money order as evidence that Dart’s actions have not impacted Backpage’s free speech.

“As for the public interest, Dart contends that public interest is best served right now because “the public is able to use Backpage.com for free,’” Tharp wrote. “Curious as it is for Dart to equate the public interest with more access to Backpage.com, the argument is specious, for the record suggests that Backpage is in jeopardy of going under as a result of Dart’s tactics.”