4
No. 15-3047
The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues
by scaring off its payments-service providers. The analogy is
to killing a person by cutting off his oxygen supply rather
than by shooting him. Still, if all the sheriff were doing to
crush Backpage was done in his capacity as a private citizen
rather than as a government official (and a powerful government official at that), he would be within his rights. But
he is using the power of his office to threaten legal sanctions
against the credit-card companies for facilitating future
speech, and by doing so he is violating the First Amendment
unless there is no constitutionally protected speech in the ads
on Backpage’s website—and no one is claiming that. The
First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening
that legal sanctions will at his urging be imposed unless
there is compliance with his demands. E.g., Bantam Books,
Inc. v. Sullivan, 372 U.S. 58, 64–72 (1963); Okwedy v. Molinari,
supra, 333 F.3d at 342–44; American Family Association, Inc. v.
City & County of San Francisco, supra, 277 F.3d at 1125.
Central to Backpage’s case is a letter of June 29 of this
year that Sheriff Dart sent both to MasterCard’s CEO and
Board of Directors and to the corresponding personnel of
Visa. The letter is on stationery captioned “Office of the
Sheriff,” and begins: “As the Sheriff of Cook County, a father
and a caring citizen, I write to request that your institution
immediately cease and desist from allowing your credit
cards to be used to place ads on websites like Backpage.com.” Notice that he is sheriff first, father and citizen
second; notice his use of the legal term “cease and desist”;
notice that he calls MasterCard “your institution,” implying