Thomas J. Argued Nov. Decided Nov. James C. Jill V. The Sheriff of Cook County , Tom Dart , has embarked on a campaign intended to crush Backpage's adult section βcrush Backpage, period, it seemsβby demanding that firms such as Visa and MasterCard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution.
Visa and MasterCard bowed to pressure from Sheriff Dart and others by refusing to process transactions in which their credit cards are used to purchase any ads on Backpage, even those that advertise indisputably legal activities. Backpage sought a preliminary injunction to stop the sheriff's campaign of starving the company by pressuring credit card companies to cut ties with its website.
The district court denied the injunction and Backpage has appealed, contending that the sheriff is curtailing freedom of expression, in violation of the First Amendment. The sheriff ripostes that he 's not using his office to organize a boycott of Backpage by threatening legal sanctions, but merely expressing his disgust with Backpage's sex-related ads and the illegal activities that they facilitate. That's not true, and while he has a First Amendment right to express his views about Backpage, a public official who tries to shut down an avenue of expression of ideas and opinions through "actual or threatened imposition of government power or sanction" is violating the First Amendment.
American Family Association, Inc. The difference between government expression and in intimidationβthe first permitted by the First Amendment , the latter forbidden by itβis well explained in Okwedy v. Molinari , F. What matters is the distinction between attempts to convince and attempts to coerce.
A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff 's First Amendment rights , regardless of whether the threatened punishment comes in the form of the use or, misuse of the defendant 's direct regulatory or decisionmaking authority over the plaintiff , or in some less-direct form. But the victims in this case yielded to the threat. It may seem odd, though it certainly does not exonerate Sheriff Dart, that he should be going after the credit-card companies rather than after Backpage itself.
