No. 15-3047
17
earlier? The internal email exchanges of both Visa and MasterCard support our doubts on this point; recall for example
the use of the term “blackmail” in the exchange between Visa employees.
Unwittingly the judge was suggesting a formula for
permitting unauthorized, unregulated, foolproof, lawless
government coercion. The formula consists of coupling
threats with denunciations of the activity that the official
wants stamped out, for the target of the denunciation will be
reluctant to acknowledge that he is submitting to threats but
will instead ascribe his abandonment of the activity to his
having discovered that it offends his moral principles. The
judge was giving official coercion a free pass because it came
clothed in what in the absence of any threatening language
would have been a permissible attempt at mere persuasion.
See, e.g., Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 66–
67; American Civil Liberties Union v. City of Pittsburgh, 586 F.
Supp. 417, 421–23 (W.D. Pa. 1984).
The judge was further mistaken when he said that “the
Sheriff’s own First Amendment rights are at stake in this
case and the Court must therefore also consider the risk that
erroneously entering an injunction would chill Dart’s own
right to speak out on issues of public concern. Sheriff Dart
has a First Amendment right to publicly criticize the credit
card companies for any connection to illegal activity, as long
as he stops short of threats” (emphasis added). But the judge
himself, in the passages we quoted earlier, had been emphatic that Dart had not stopped short of threats. Those threats
were not protected by the First Amendment; they were violations of the First Amendment.
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