in the legal case Backpage.com v. Dart a unanimous panel of the Seventh Circuit Court of Appeals in a lively opinion ordered Thomas Dart, the sheriff of Cook County, Illinois, to end his campaign of suffocation against the small ads website and
stop violating its First Amendment rights.
The court of appeals rejected Sheriff Dart's contention that he was merely expressing his personal distaste for Backpage and not using his position as a government official to coerce Visa and MasterCard into
discontinuing business with the website. Rather, the court of appeals held that Sheriff Dart's actions amounted to an unconstitutional prior restraint on Backpage's speech.
EFF made a submission to the court arguing that government officials such
as Sheriff Dart may not use their positions of authority to coerce companies with express or implied threats of legal liability into taking actions that censor speech--whether online or offline.
The Seventh Circuit agreed. Overruling the district
court that had denied Backpage's request for a preliminary injunction, the court of appeals issued the following order:
Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or
on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being
provided to Backpage.com.
While Sheriff Dart is rightly concerned about sex trafficking, the court of appeals noted that no one is claiming that there is no constitutionally protected speech in the ads on Backpage's website. (emphasis in original) Yet
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. (emphasis in
Sheriff Dart had written letters intimating that the credit card companies could be prosecuted for processing payments made by purchasers of the ads on Backpage that promote unlawful sexual activity, such as prostitution. The
court of appeals noted that It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious. Thus the court held that Sheriff Dart's actions constituted a prior restraint in violation of the
The Seventh Circuit equated Sheriff Dart's campaign of depriving the company of ad revenues by scaring off its payments-service providers rather than going after Backpage directly through litigation with killing a person
by cutting off his oxygen supply rather than by shooting him.
The Seventh Circuit made clear that Sheriff Dart, in his official capacity, does have freedom of government speech. However, the court of appeals stressed that such freedom
has limits. He or any other government official or entity is not permitted to employ threats to squelch the free speech of private citizens.
A new US morality group has started up to try and convince companies to extend their corporate website blocking lists to include sites that the campaigners don't like.
Called the BEST Employer Alliance (BEST stands for Businesses Ending Slavery and
Trafficking ), the group has partnered with the City of Seattle, King County, and a slew of private companies in an anti-sex trafficking effort. The groups aims to have sites like backpage.com blocked in offices and other workplaces. BEST Executive
Director Mar Brettman said in an interview with the Daily Dot after the initiative launched in September:
We have partnered with both the county and the city of Seattle, which are both significant employers in the
region. And we have 18 employers total representing 125,000 employees.
That's a lot of people who can no longer access Backpage during working hours. And according to a study that King County prosecutors conducted in collaboration
with Google last winter, most sex work clients book appointments during the afternoon hours while they are at work.
MasterCard and Visa have supported a move to censor advertisements in the adult section of classified ad website Backpage.com.
The credit card companies will now longer allow their card to be used for payment for such adverts.
The move comes
after a sheriff in Cook County, Illinois named Thomas Dart requested that both credit companies sever ties with the site. He cites for reasons of supposed trafficking but no doubt the basis is a moral judgement against adult services.
Update: Censored by MasterCard even when the service is legal
Thosusands of Australian sex workers say their legitimate business is being brought to a grinding halt by censorship by credit card companies instigated by a US county sherriff.
Mastercard has announced it was implementing a worldwide ban on
customers placing adult ads on Backpage.com, an online classified advertising marketplace used widely by sex workers to promote their services.
The site has long come under fire from moralist in the US, where sex work is illegal in most states,
for promoting prostitution. But the censorship still applies even where legal.
The Scarlet Alliance, which speaks on behalf of Australian sex workers, said Backpage.com was the primary source of clientele for many local sex workers.
Brisbane sex worker Nikki Cox said she was angry and upset about Mastercard's decision. She said:
We have fought long and hard in this country to have the rights that we do.
For a sheriff in the USA to come along and appeal to have credit card companies remove the option of using our card to
pay for advertising services is a badly thought out decision on his behalf.
This is fine for the USA where sex work is illegal in 49 states but it should not have a rollover effect in Australia.
Alliance CEO Janelle Fawkes went one step further, accusing Mastercard of discrimination.
We have anti-discrimination protection for sex workers in some parts of Australia, and much of that legislation is framed around
treating sex workers differently and disadvantaging them.
This is very specifically singling out and discriminating against sex workers, which is absolutely unacceptable.
Sex workers are part of the
community and are earning a legitimate income like everyone else, and they have the same rights and responsibilities as everyone else.
The online classified web site Backpage.com, long used by sex workers as a low-cost means of advertising their services and screening clients, has announced that it is allowing users to post ads for free to the adult services section of its site.
Backpage has been sending e-mails to users of the adult services section of the site informing them that they could use free promo code FREESPEECH until their payment situation was resolved to post ads.
Advertisers can also still use
bitcoin to pay for ads, and the company recently began allowing users to pay for credits that could be used to post ads. The credits can be purchased by money order, check or cash mailed to a P.O. Box in Dallas.
The 'Justice' for Victims of Trafficking Act (JVTA) a piece of bipartisan anti-trafficking legislation that has been criticised for its prioritisation of law enforcement, passed the US House of Representatives by 420 votes to three on 19th of May. The
legislation will now head to President Obama's desk to be signed into law.
The problematic Stop Advertising Victims of Exploitation Act (SAVE) had been added on to the bill. This legislation would allow website owners to be charged as sex traffickers
if any trafficking victims are found to have been advertised on the site--whether or not the website owner had any knowledge of this happening. Sponsors of the bill have specifically stated that their intent is to shut down , or at least seriously
cripple, advertising spaces for sex workers, such as Backpage.com, which would take away from sex workers a safe space for screening clients.
Lawyers Lou Sirkin and Brian O'Connor have filed a case last month in U.S. District Court in San Francisco on behalf of an organization representing prostitutes known as the Erotic Service Provider Legal, Education & Research Project. It names three
current or former prostitutes and a man with a disability who wants to be able to legally hire prostitutes as other plaintiffs in the case.
Their argument centers on people's right to do what they want as long as it's legal. It's legal to have sex,
so why should it be illegal to pay for it? the argument goes. O'Connor compared it to having the freedom of the press but making it illegal to sell newspapers. Sirkin explained:
It's really a constitutional issue,
we think. We're talking only about consenting adults here. Our whole theory is that any law based on morality has no place in this country. Morals are different for different people. Legislation should not be determined by morality. Because you exchange
a dollar rather than dinner, why should it be made illegal?
Sirkin hopes to get a ruling by late summer, but he expects the case to be taken to higher courts after that.
Laws against the commercial exchange of consensual, adult sexual activity are being challenged as violations free speech, due process and freedom of association rights
The Erotic Service Providers Legal, Education and Research
Project (ESPLER), a community-based coalition advancing sexual privacy rights through legal advocacy, has filed a complaint in U.S. District Court against Kamala Harris, California's Attorney General and leading U.S. Senate candidate, and four Northern
Californian District Attorneys, alleging the current anti-prostitution law violates fundamental Constitutional Rights.
The complaint contends that California's current anti-prostitution law unfairly deprives individuals the right
to private consensual activity, criminalizes the discussion of this activity between consenting adults, and unconstitutionally places restrictions on individuals' right to freely associate.
ESPLER attorney D. Gill Sperlein
We believe it is time to revisit the criminalization of prostitution and put the State to the test. In the light Lawrence v. Texas and Reliable Consultants v. Abbott, the State can no longer simply say that
morality is a sufficient reason for regulating private sexual relationships even when it involves the exchange of moneySocial science clearly demonstrates that the criminalization of prostitution puts sex workers at risk of abuse because it discourages
them from reaching out to law enforcement.
Maxine Doogan, ESLPER's President added:
Just as the Lawrence v. Texas decision made same-sex sexual activity legal, and the Loving v.
Virginia decision struck down laws prohibiting interracial marriage, this complaint seeks to remove the government from restricting basic fundamental and widely recognized civil and human rights.
The complaint asks
the court to declare that California's prostitution statute, Section 647(b) of the California Penal Code, is unconstitutional.