When a law enforcement official threatens punitive action and reputational damage against a credit card company, with the goal of seeing a website starved for funds and forced to shut down, that official has violated the First Amendment. This is the message that CDT, EFF, and the Association of Alternative Newsmedia sent to the Seventh Circuit last week in our amicus brief in Backpage v. Dart.
The backstory of this case is compelling: For years, Cook County Sheriff Tom Dart has waged a campaign against online classified ad site Backpage.com (and Craigslist.com before it, in the unsuccessful litigation Dart v. Craigslist), seeking to hold it liable for sex trafficking and prostitution crimes committed by some of the people who post ads on the site. Of course, it’s appropriate for law enforcement officials to pursue prosecution of the pimps and johns who engage in trafficking. But website operators are shielded from legal liability for content that is posted by third parties, thanks to Section 230. Several states have tried to pass laws that would create new state-level criminal liability for hosting advertisements for unlawful services, but each of these has been struck down for violating both Section 230’s state-law preemption clause and the First Amendment.
With prosecution off the table, this summer Sheriff Dart turned to the bully pulpit in his continued efforts to see Backpage.com taken off the web. In late June, Sheriff Dart sent letters addressed to the CEOs, Board of Directors, and top institutional investors of Visa and MasterCard, Backpage’s primary financial services providers. These letters demanded that the card companies “cease and desist” from their business relations with the site and implied that the they could face civil or criminal liability for continuing to process payments for ads linked to unlawful activity. The letters invoked the reputational damage that the credit card companies would face if they continued to provide service to Backpage.com, and Sheriff Dart followed up these missives with phone calls and emails that promised to single out the card companies in press conferences if they did not cooperate. Within 48 hours, both MasterCard and Visa had terminated Backpage’s accounts.
Free expression online is jeopardized when intermediaries are vulnerable to government threats and coercion
CDT and our co-amici filed in this case because its implications go far beyond the particular burden of Sheriff Dart’s campaign to starve Backpage.com off of the Internet. Everyone who uses the Internet to share their thoughts, ideas, and opinions depends on a series of technological intermediaries to transmit, host, and publish their speech. These include everything from Internet service providers and domain name registrars to cloud service providers and website operators. Under US law, Section 230 shields these intermediaries from the threat of legal liability for the third-party content that they host and transmit – a cornerstone legal protection for free speech online.
The ability of end-users to express themselves online depends not only on their access to technological intermediaries, but also on those entities’ ability to access the electronic payments system.
The ability of end-users to express themselves and to seek out information online depends not only on their access to technological intermediaries, but also on those entities’ ability to access the electronic payments system. Website operators use financial services such as credit cards to buy domain names and rent server space for their speech, to purchase Internet access services, and to pay their staff. Thus, financial service providers function as “financial intermediaries” that facilitate the exchange of funds between speakers (including website operators and users) and providers of technical infrastructure.
A website operator whose bank or credit card account is cut off loses the ability to complete those transactions that are necessary to keep his or her site online. An operator who is cut off from financial services also loses the ability to receive payments from ad networks and direct advertisers for hosting advertising on his or her site. This is a particularly important consideration given the wealth of online services and hosts of third-party content that are provided at no direct cost to users and depend on revenue from advertising.
Intermediaries can be vulnerable pressure points for governmental actors who seek to censor content and silence speakers online. In our brief, we provide the court with a number of examples of informal government censorship exerted through pressuring technical intermediaries, including the California Secretary of State’s threatening letters to vote-swapping websites before the 2000 election and the campaign by state Attorneys General that pressured Craigslist into shutting down its “adult services” section in 2010.
We also discuss the particular risk posed by threats of legal reprisal made to players in the financial services system. Officials who disagree with the opinions and information expressed on a website, or whose true target is the unlawful conduct of some of the website’s users, may find a pliant pressure point in banks, credit card networks, and third-party payment processors that facilitate financial transactions for the site or service. Threatening financial intermediaries with legal action and reputational injury can lead these entities to terminate their services to a website operator, cutting off the operator’s access to the financial system in order to remove it from the web – as we saw Senator Joseph Lieberman do with Wikileaks in 2012.
Government officials can’t mix threats with “advocacy”
Following the credit card companies’ termination of its accounts, Backpage.com sought a temporary restraining order and preliminary injunction against Sheriff Dart, to compel him to halt his campaign to defund the website. While the lower court granted the temporary order, it declined to issue a preliminary injunction, arguing that Sheriff Dart had an independent First Amendment interest in his “advocacy” on a point of public concern, which he had interwoven with his explicit and implicit threats against Visa and MasterCard.
By denying Backpage.com an injunction against Sheriff Dart, the lower court has sanctioned extralegal government tactics to suppress an entire platform.
This rationale by the lower court risks insulating coercive government action in the cloak of the First Amendment. While government officials certainly retain a First Amendment right to express their opinion as private individuals, when they speak in their official capacity or pursuant to their official duties, they are acting as representatives of the government, not as private citizens. And in cases where an official conveys his opinion to the same recipients on the same topic in the same communication in which he also issues an implied or explicit threat of government sanction, such “opinion,” for all practical purposes, becomes indistinguishable from the threat.
By denying Backpage.com an injunction against Sheriff Dart, the lower court has sanctioned extralegal government tactics to suppress an entire platform dedicated to the exchange of information and ideas. This turns the First Amendment on its head and deprives entities such as Backpage.com of due process of law. Left unchecked, such government actions represent a serious threat to the flow of information and the availability of forums for speech in the digital age.
If web-based platforms and traditional media cannot challenge government-led blockades against disfavored speech, would-be censors will turn increasingly to the Internet’s technological and financial underpinnings to drive whole platforms from the Internet. Online intermediaries will face greater obstacles in hosting unpopular or commercially risky viewpoints, and all intermediaries–“Internet-based” or otherwise–will be less likely defend the public’s interest in a diversity of viewpoints and forums for speech. CDT urges the Seventh Circuit to demonstrate that the First Amendment still protects speakers against censorship via government coercion by granting a preliminary injunction against Sheriff Dart.