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No. 15-3047
strong suggestion that the companies could not simply ignore Dart.
Yet having thus shown that Sheriff Dart had indeed used
his office as sheriff to intimidate the credit card companies,
Judge Tharp said that “a threat alone is not a prior restraint.
... [T]he threat must produce some ‘consequence.’ … And
while the Court [that is, Judge Tharp] does not quarrel with
the premise that the letter precipitated the companies’ actions … it is far from clear that any threat the letter may have
contained caused the companies’ action” (emphases in original). Maybe, the judge suggested, the letter and other
threatening actions taken by Sheriff Dart and his underlings
merely reminded the credit card companies that they “simply did not want to do business with a website where advertisers peddle flesh.” And therefore, the judge concluded,
Backpage has a “small likelihood of success on the merits” of
its suit against the sheriff.
Had the companies not known that “advertisers peddle
flesh” on Backpage, the judge’s point would have been well
taken. But of course they knew about the nature of the advertising on Backpage—everyone does—without having to
be told by Sheriff Dart. He didn’t educate them about the nature and possible consequences of advertising for sex; he
told them to desist or else. If Judge Tharp had been correct in
crediting the companies with “ceas[ing] doing business with
Backpage.com because they did not want their products to
be associated with the content posted there,” they would
have ceased doing business with it years before. Backpage’s
content was not a discovery of Sheriff Dart’s. If as the judge
said the credit card companies cut off Backpage “for independent business reasons,” why hadn’t they done that years
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