14
No. 15-3047
from Backpage’s adult ads must have been a small fraction
of their overall revenue, especially since not all of Backpage’s ad customers pay for their ads with a MasterCard or
Visa credit card. Yet the potential cost to the credit card
companies of criminal or civil liability and of negative press
had the companies ignored Sheriff Dart’s threats may well
have been very high, which would explain their knuckling
under to the threats with such alacrity.
The district court’s opinion denying the relief sought by
Backpage contains a number of errors. It states, for example,
that the Supreme Court in the Bantam Books case “was careful to note [at 372 U.S. at 71–72 that] its ruling does not require law enforcement officials to ‘renounce all informal
contacts with persons suspected of violating valid laws prohibiting obscenity.’” This doesn’t help Dart’s case; he didn’t
just make informal contacts with credit card companies;
Backpage is complaining about the formal contacts that he
initiated with those companies in an effort to frighten them
into severing their contracts with Backpage.
In tension with his holding, Judge Tharp’s opinion contains a lucid, indeed compelling, explanation of why Sheriff
Dart’s letter to MasterCard did constitute a threat:
Dart’s letter to the credit card companies could reasonably be interpreted as an implied threat to take, or cause to
be taken, some official action against the companies if they
declined his “request” to stop providing a method to pay
for advertising on Backpage.com. Dart did not directly
threaten the companies with an investigation or prosecution, and he admits that his department had no authority
to take any official action with respect to Visa and MasterCard. But by writing in his official capacity, requesting a
“cease and desist,” invoking the legal obligations of finan-
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