No. 15-3047
3
latter forbidden by it—is well explained in Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003) (per curiam): “the fact
that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that
is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive … . 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.”
Notice that such a threat is actionable and thus can be enjoined even if it turns out to be empty—the victim ignores it,
and the threatener folds his tent. 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. If Backpage is
violating the law by accepting classified ads for “adult” services, which may include illegal services, such as prostitution, you’d think the sheriff would sue Backpage. But no; he
tried that against Craigslist, a classified-ads website that had
an adult section similar to Backpage’s, and he failed. District
Judge Grady, in a thorough opinion, threw out the sheriff’s
case. Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill.
2009). Craigslist, perhaps anticipating Dart’s campaign
against Backpage, shut down its adult section the following
year, though adult ads can be found elsewhere on its website.