FAN 85 (First Amendment News) “Is phone sex violent?” — Posner challenges lawyer in online classified advertising case

There’s no sex in your violence — Bush, “Everything Zen

Judge Richard Posner

Judge Richard Posner

Seventh Circuit Judge Richard Posner was in a plucky mood last week when Backpage,com v. Dart was argued before his panel, which included Judges Diane Sykes and Kenneth Ripple. ) More about Judge Posner (and sex) shortly, but first a few things about the case.

 FactsBackpage.com is the second largest online classified advertising website in the U.S., after Craigslist. Users post more than six million ads monthly in various categories, including buy/sell/trade, automotive, real estate, jobs, dating and adult. Users provide all content for their ads; Backpage.com hosts the forum for their speech. Thomas Dart, the sheriff of Cook County, wanted to eliminate online classified advertising of “adult” or “escort” services. And why? As the Sheriff saw it, such ads were little more than solicitations for prostitution. He also argued that these ads facilitate human trafficking and the exploitation of children. Last June the Sheriff sent letters to the CEOs of Visa and Mastercard to “request” that they “cease and desist” allowing their credit cards “to be used to place ads on websites like Backpage.com, which we have objectively found to promote prostitution and facilitate online sex trafficking.” It worked; the companies blocked the transactions.

→ District Court: Backpage.com went to federal court and first sought a temporary restraining order and later a  preliminary injunction based on First Amendment grounds. District Judge John J. Tharp Jr. presided over the case. “In arguing that it is likely to succeed on the merits,” said Judge Tharp, “Backpage contends that Dart’s actions constitute precisely the type of informal prior restraint condemned as a First Amendment violation in Bantam Books, Inc. v. Sullivan (1963).” Judge Tharp thus concluded: “The Court makes no judgment as to the merits of Backpage’s claims, and any factual findings it has made are preliminary only and not binding in any proceedings on the merits.” On August 21, 2015, the court denied Backpage.com’s motion for a preliminary injunction, thought it had previously granted a TRO in the case. In any event,  Backpage.com appealed.

 The Cato Institute filed an amicus brief as did the Center for Democracy & Technology (see here) in support of the Petitioner.

Excerpts from Oral Arguments in the 7th Circuit

Below are select excerpts, which I transcribed, from the oral arguments in the Seventh Circuit. The arguments began with a presentation by Robert Corn-Revere. Judge Posner did not pose any questions to Appellant’s counsel anytime during the arguments, though Judges Sykes and Ripple did ask a few questions. Ms. Hariklia Karis argued on behalf of Appellee Sheriff Dart. Her arguments, by contrast, were met at the outset and thereafter with vigorous questioning from Judge Posner as indicated by the excerpts below.

Judge Posner: “You know, a police official has to be very careful in what he says. This is not Tom Dart as a private citizen, writing a letter to a newspaper or something, saying he doesn’t like Backpage. This is all done, office of the Sheriff, official stationary  — well anybody receiving an offcial communication from a sheriff is going to feel there is an implicit threat to follow this up with legal action.”

Ms. Karis: “Your honor, both VISA and Mastercard have both established that they did not receive or perceive this an an offical threat. . . .”

Judge Posner: “You believe that?”

Ms. Karis: “I absolutely believe that, and the the evidence is undisputed –“

Judge Posner: “Well, that’s ridiculous. These people, these companies do not feel they can defy an official . . . There’s nothing, you know, that Dart has.”

Ms. Karis: “VISA has spoken and submitted an affidavit in this court, which the district court considered, in which their vice-president for global brand reputation specifically said [that] he did not view the letter –“

Judge Posner: “Well what do you expect them to say?”

Ms. Karis: “Your honor –“

Judge Posner: “We’re knuckling under to threats? . . . Look, the tone of [the Sheriff’s letters] is so unprofessional. He talks about a violent industry; is phone sex violent? . . . “

Ms. Karis: “It can be.”

Judge Posner: “Really?”

Ms. Karis: “It certainly can.”

Judge Posner: “How?”

Ms. Karis: “Depending on whether children are involved — “

Judge Posner: “We’re not talking about children here. . . . And all the adults are getting swept up with the children?”

Ms. Karis: “The adults are not getting swept up with the children.”

Judge Posner: “Well they are. Adults who participate [chuckling] in phone sex with each other are potential targets. And what about old people, old men [chuckling] who would like to be seen with a young woman. Right? That is an aspect of the escort service; it’s not all sex!”

Ms. Hariklia Karis

Ms. Hariklia Karis

Ms. Karis: “Sheriff Dart did not take down the content or propose to take down the content of Backpage’s webpage, which was not illegal conduct. MasterCard in particular, to your Honor’s question of the recipient receiving this and what can they say, MasterCard had already decided that they no longer wanted to be affiliated with Backpage one week before Sheriff Dart ever sent that letter out. That evidence is undisputed.”

 Judge Posner: “Well, I’m sure that VISA and MasterCard don’t want to spend their time fending off whacks from Sheriff Dart. Right? These companies make a decision. Right? They don’t want to be slandered by a high government official.”

Ms. Karis: “Mastercard made the decision to terminate its relationship with Backpage before they ever received Sheriff Dart’s letter. The letter could not have possibly had the effect that is required under Bantam Books in order for there to be a prior restraint. Bantam Books is quite clear that it is necessary not only to have a threat, if the letter is even a threat, but there has to be a coercive effect. In this case the record was undisputed that MasterCard had made the decision to terminate their relationship with Backpage before ever receiving that letter. There could not have been an effect. . . . “

Judge Posner: “Why did [the Sheriff] send them a letter if they had already decided?”

Ms. Karis: “Sheriff Dart was unaware of the decision of MasterCard before he sent the letter. . . .”

Judge Posner: “What about VISA?”

 Ms. Karis: ” . . . VISA made the decision after receiving Sheriff Dart’s letter.”

Judge Posner: “Yes.

Ms. Karis: ” . . . . The reason for [VISA’s] decision was because they did not want reputational concerns associated with their brand in light of the knowledge that American Express and MasterCard were no longer going to be associated.”

Judge Posner: “So are you saying the letter had no effect on VISA?”

Ms. Karis: “The letter had no coercive effect on VISA.”

 Judge Posner: “Why hadn’t they abandoned Backpage before they received the letter?”

Ms. Karis: “VISA was not aware that MasterCard and American Express had terminated their services with Backpage until after they received the letter.  Once they received the letter, they learned that they were going to be the only credit card company who was going to remain doing business with a website that was prolific in posting adds that trafficked women and children for sex. . . . “

Judge Posner: “Where does it stop? . . . [Are] threats . . .  okay without effects?”

Ms. Karis: “Bantam Books, your Honor, finds it particularly relevant that the content had the intended effect of terminating the service, or relationship, or causing the subscriptions to no longer to be issued.”

Judge Posner: “What if Sheriff Dart wrote to Bonwit Teller, or something, and said I don’t like your selling short skirts; I think it promotes sexual improprieties. Would that be proper?”

Ms. Karis: “That would be proper, your honor.”

Judge Posner: “That would be proper. . . . So everything that Sheriff Dart doesn’t like receives these letters from the office of the sheriff?”

 Ms. Karis: “Sheriff Dart has his own First Amendment right and can express his opinions –“

Judge Posner: “He [can use] the office of the sheriff to express any antipathy he has to anything?”

Ms. Karis: “He can speak both as a citizen and a public official to express his opinions –“

Judge Posner: “So you’re saying there’s no limit; he can express his opinion, on his office stationery, on any subject that occurs to him.  What if he doesn’t like pets? He doesn’t think people should have animals in their house? He can suggest to everyone that they euthanize their pets? . . . . Can he do that? Can he say, ‘let’s get rid of all these animals in people’s houses?'”

Ms. Karis: “He can express his opinion, yes.”

Judge Posner: “Well, why don’t you just say ‘yes’? You’re fencing with me.”

Judge Diane Sykes

Judge Diane Sykes

Judge Sykes: “This letter goes well beyond the expression of opinion. This is a cease and desist letter . . . and requires and immediate response and is followed by e-mails and letters from his staff, and is phrased in terms of a demand.  It’s on his official stationary and  he’s expressing himself as sheriff of Cook County and not as a private citizen. . . . This [letter] is objectively threatening, whether the credit card companies will subjectively admit that or not. They have a public relations interest in not subjectively admitting that, I think. And there is plenty of evidence that their action was precipitated by this letter because it followed immediately on the heels of receiving the letter.”

Ms. Karis: “As the district court recognized, . . . a jury could possibly find that the letter is a threat at the merits stage. With respect to a preliminary injunction, however, a necessary element for a prior restraint is to find an effect . . .”  

Judge Sykes: “Not but-for causation, but that the letter was a motivating factor in producing the disaffiliation, which is the restraint — that’s the suppression part of the equation. And it did have that effect, that was clearly the intended effect on Sheriff Dart’s part based on the language of the letter . . . . Whether the credit card companies would have gotten around to disaffiliating on their own is a subject  for a damages trial, but it doesn’t defeat the First Amendment violation. . . . [W]e’re here on a motion for a preliminary injunction, and a basic First Amendment violation has been established here. . . .”

. . . .

Judge Posner: “. . . Does [the sheriff] want Backpage to close out its adult section? Is that the idea? And the credit car companies will come back? Is that the idea? . . . Does he think Backpage is violating the law in not instituting all of the protective measures he wants?”

Ms. Karis: “He thinks that –“

Judge Posner: “Now, answer my question, please.”

Ms. Karis: “He does not think that Backpage is violating the laws for any ads that do not involve unlawful conduct.”

Judge Posner: “No, no, you’re not answering my question. Does he think that Backpage is currently violating the law . . . ?”

Ms. Karis: “I cannot speak to that because I do not –“

Judge Posner: [raising his voice] “First of all, keep your voice up so I can hear you. And secondly, please try to answer the question rather than give a speech on a different subject. Does he think that Backpage is violating the law?”

Ms. Karis: “Yes, with respect to adult services that illicit unlawful conduct.”

Judge Posner“So in other words, he thinks that Backpage is violating the law. And the next step would be to suggest that any credit car company that does business with Backpage is an accomplice. Right?”

Ms. Karis: “No your Honor.”

judgeposner_2010Judge Posner: “Why? Of course they’re accomplices. They’re assisting Backpage in what Dart regards as criminal activities; they’re doing it knowingly; they know what Backpage is. Right?”

Ms. Karis: “They were unaware of this conduct –“

Judge PosnerNow, come on! They were unaware of the adult section of Backpage?

Ms. Karis: “Your Honor, what the evidence in this case shows is that [the way MasterCard learned of this is when its] shareholders communicated to MasterCard that they had become aware of this.

Judge Posner: “And you think that MasterCard didn’t know that Backpage had this adult section, before citizens starting writing them letters? That is beyond naïve. Everyone knows what Backpage is. Certainly the people [chuckling] who do business with Backpage, such as the credit card companies, of course they know what it is. Right? So my question is: [Since the sheriff believes that Backpage is engaged in illegal activities], doesn’t that mean that he believes . . . . that any credit card company that does business with Backpage is an accomplice in illegal activity? No?”

 Ms. Karis: “No, your Honor.

Judge Posner“No? How do you figure that out? Do you think the credit card companies are ignorant? They don’t know there is an adult section in Backpage?”

Ms. Karis: “VISA and MasterCard . . . provide the service for the affiliated banks. In fact, for VISA, that is VISA-Europe.  There was no evidence in this case –“

Judge Posner: “MasterCard and VISA don’t know that people use their cards to get onto Backpage’s adult section and, you know, hire escorts and so on? . . . They don’t know that?”

Ms. Karis: “Yes, they are likely aware that it is used for Backpage.  What they are not aware of is the amount of illegal conduct that comes from those ads –“

Judge Posner“What do you mean they don’t know the amount? They know there is illegal conduct. If you know and assist in illegal conduct, . . . you are engaged in criminal activity.

Ms. Karis: “You Honor, . . . nowhere in Sheriff Dart’s letter does he suggest they were accomplices–“

Judge Posner: “. . . “But you realize they are. . . . accomplices . . . .”

Ms. Karis: “They would not [be accomplices]. . . The Communications Decency Act gives Backpage certain protection  . . . and therefore he was not saying to Backpage that what they were doing in posting these ads were illegal, nor was he saying to VISA and MasterCard that what they were doing was being accomplices to this. He was bringing it to [their] attention that Backpage’s ads result in unlawful conduct.”

Judge Posner: [The sheriff used the word “willfully” in his letter is MasterCard]. That is what he said.”

 Ms. Karis: “That is what he said, your Honor.”

Judge Posner: “Okay, thank you very much Ms. Karis.”

Mr. Corn-Revere: “. . . As a matter of fact, the record doesn’t show that the credit companies had already made a decision to defund Backpage.com. The most that it shows is that one of the acquiring banks for MasterCard had made a decision in mid-June that it was going to cease affiliating with Backpage.com, but that decision was not going to be implemented until the end of July. It was only after Sheriff Dart’s letter was sent that this decision for the one acquiring bank was escalated to being immediate and not a month hence. And that’s when the decision was spread not just to that one acquiring back but to all the acquiring banks for MasterCard. As a matter of fact, [the record shows that] this escalated the concern because then it was because this was a law-enforcement referral — this was considered to be a brand-damaging activity. And because of that, Backpage was put on a match list, which prevented other banks form stepping in. So it wasn’t a decision that was done, even for MasterCard, let alone for the other credit card companies. . . .”

. . . .

Judge Posner: “Okay, thank you very much Mr. Corn-Revere and Ms. Karis”

* * * * 

Two days ago the Court granted the Petitioner’s motion for an injunction pending appeal.

→ The panel’s full opinion is yet to come.

* * * * 

→ For more on Judge Posner, and in case you missed it, see “The Complete Posner on Posner Series.”

 Forthcoming:

  1. Richard Posner, Divergent Paths: The Academy and the Judiciary (Harvard University Press, January 2016)
  2. William Domnarski, Richard Posner (Oxford University Press, April 2016)

Student Off-Campus Speech Case Before Supreme Court: How far does Tinker reach? 

The case is Bell v. Itawamba County School Board. As recounted by the Fifth Circuit three-judge panel, the facts in the case involved a “First Amendment challenge to a public high school student’s suspension and transfer to alternative school for his off-campus posting on the Internet of a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at his school. The aspiring student rapper, Taylor Bell, composed the song off campus, recorded it at a professional studio unaffiliated with the school, and posted it on his Facebook page and on YouTube using his personal computer while at home. Bell had never before been charged with a serious school disciplinary violation.”

Taylor Bell

Taylor Bell

Cause of Action: “After the disciplinary action was imposed and affirmed by the Itawamba County School Board, Bell and his mother, Dora Bell, sued the School Board, its Superintendent, and the school’s Principal, for violation of Bell’s freedom of speech under the First Amendment and Dora Bell’s substantive-due-process right to parental authority under the Fourteenth Amendment.”

→ Issue: Whether, consistent with the requirements of the First Amendment, off-campus speech directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher satisfies the almost 50-year-old standard for restricting student speech, based on a reasonable forecast of a substantial disruption.

→ On Appeal: A Three-judge panel ruled in favor of the plaintiff, but the Court en banc affirmed the district court’s grant of summary judgment in the case (three judges dissented).

→ Does Tinker apply to off campus speech? Some of the judges in the case wrote special concurrences in order to express the limited reach of the court’s holding. For example,in his concurrence, Judge E. Grady Jolly stated: “Tinker . . .  did not address the intersection between on-campus speech and off-campus speech. . . . When Tinker was written in 1969, the use of the Internet as a medium for student speech was not within the Court’s mind. It is also true that this issue was not in the forefront of the Court’s mind when Porter was written in 2004, or even when Morse and Ponce were written. Ever since Morse, the use, the extent and the effect of the online speech seem to have multiplied geometrically.”

Judge Jennifer Walker Elrod also wrote a separate concurrence in which she stated: “Most importantly, nothing in the majority opinion makes Tinker applicable off campus to non-threatening political or religious speech, even though some school administrators might consider such speech offensive, harassing, or disruptive. . . . By my read, the majority opinion avoids such “ominous implications” and does not subject a broad swath of off-campus student expression to Tinker. Rather, it quite sensibly decides only the case before it, applying Tinker to Bell’s rap, which was intentionally directed toward the school and contained threats of physical violence. Because this cautious approach does not place public school officials in loco parentis or confer upon them a broad power to discipline non-threatening off-campus speech, I concur in full.”

In his concurrence, Judge Gregg Costa decalred: “Broader questions raised by off-campus speech will be left for another day. That day is coming soon, however, and this court or the higher one will need to provide clear guidance for students, teachers, and school administrators that balances students’ First Amendment rights that Tinker rightly recognized with the vital need to foster a school environment conducive to learning. That task will not be easy in light of the pervasive use of social media among students and the disruptive effect on learning that such speech can have when it is directed at fellow students and educators.”

Wilbur O. Colom is the counsel of record for the Petitioner Taylor Bell. Among other things, in his cert. petition he argues:

  1. The Court’s school-speech precedents apply only to on-campus speech.
  2. The lower courts are hopelessly divided over whether and how Tinker applies off-campus.
  3. The question presented is vitally important and recurring.
  4. At a minimum, Tinker should not apply to off-campus speech on matters of public concern, and
  5. The First Amendment contains no exception for rap lyrics that are not a threat

[ht: Adam Liptak]

Buckley v. Valeo: 40 Years Later — Reflections by Floyd Abrams at UC Irvine Law School 

This landmark case was argued 40 years ago this month, on November 1o, 1975. The issue in the case was whether the limits placed on electoral expenditures by the Federal Election Campaign Act of 1971, and related provisions of the Internal Revenue Code of 1954, violate the First Amendment’s freedom of speech and association clauses?

→ The Parties: A lawsuit was filed in the District Court for the D.C. by Senator James L. Buckley (R-NY) and former former Senator and 1968 presidential candidate Eugene McCarthy (D-MN) along with the American Civil Liberties Union, the American Conservative Union, the Peace & Freedom Party, the Libertarian Party, and various other various other plaintiffs. The named defendant in the caption was Francis R. Valeo, the Secretary of the Senate an ex officio member of the Federal Elections Commission.

The lawyers who argued the case were:

  • Brice M. Clarett:  Argued the cause for the appellants
  • Lloyd N. Cutler:  Argued the cause for the appellees
  • Archibald Cox:   Argued the cause for the appellees
  • Ralph S. Spritzer: Argued the cause for the appellees
  • Daniel M. Friedman: Argued the cause for the appellees
  • Joel M. Gora:  Argued the cause for the appellants
  • Ralph K. Winter, Jr.: Argued for Appellants
Floyd Abrams

Floyd Abrams

On the 40th anniversary of the arguments in the case Floyd Abrams delivered the Raymond Pryke First Amendment Lecture at the University of California at Irvine School of Law.  Dean Erwin Chemerinsky introduced Mr. Abrams.  You can find the video here.

Link to prepared remarks here.

Most of the lecture consisted of Floyd defending the Supreme Court’s approach to campaign finance cases particularly in Buckley v. Valeo and Citizens United v. FEC. Having just written a book that examines some of Floyd’s arguments in detail, I found many of Floyd’s arguments familiar (well said, and interesting to the audience, but familiar to me). And in the Q & A I asked Floyd about the treatment of foreign money in elections.

But there was one part of the talk that was new to me and significant, and when I asked Floyd about it, he confirmed it was new. It comes near the end of the talk, when Floyd (around the 35 minute mark) says:

“Now in praising Buckley I don’t mean to denigrate the need for much greater attention to be played to the issue of equality with respect to elections as well as other topics. It’s not only a current political issue, but a moral one. But it is not to be solved, I would argue, or even addressed, by limiting speech. There are lots of non-First Amendment-threatening ways to seek to address the issue of equality generally or even ith respect to elections generally and other topics. The decision of the Supreme Court, holding unconstitutional a central part of the Voting Rights Act, for example, seems to me indefensible. The gerrymandering that has made elections to Congress in most districts so non-competitive that many find it irrelevant to vote is not only morally odious but raises legal issues that I hope someday the Supreme Court will sseriously address. Significantly increased voter identification requirements, limitations on times and places of voting, are at odds with what I think of as democratic norms. And I think we should have more public funding of elections and more disclosure of who spends what in elections. But limiting speech about elections is something else entirely.”

*  *  * *

 Mr. Abrams also expressed the opinion that the dissenting opinions in Citizens United represented “a low point in recent First Amendment jurisprudence.”

New & Forthcoming Scholarly Articles

  1. Adam Candeub, “Digital Medicine, the FDA, and the First Amendment,” Georgia Law Review (forthcoming)
  2. Kelsey Bain,  “Defaming Planned Parenthood: Lying, Cybersmears, and the First Amendment,” SSRN (Dec. 2015)
  3. Marc O. DeGirolami, “Virtue, Freedom, and the First Amendment,” Notre Dame Law Review (forthcoming)
  4. Scott Bauries, “A Benign Prior Restraint Rule for Public School Classroom Speech,” Education Law & Policy Review (2015)
  5. Sonja Weest, “Student Press Exceptionalism,” Education Law & Policy Review (2015)
  6. Jennifer Rothman, “Commercial Speech, Commercial Use, and the Intellectual Property Quagmire,” Virginia Law Review (2015)

News, Op-eds & Blog Posts

 Ruthann Robson, “Can a trial judge prohibit defendants (and spectators) from wearing ‘Black Lives Matter”‘ shirts?,” Constitutional Law Prof Blog, November 11, 2015

  1. Eugene Volokh, “The First Amendment and soliciting the murder of identified American soldiers,The Volokh Conspiracy,” November 16, 2015
  2. Kathy Sullivan “Kathy Sullivan: The First Amendment protects city employees, too,”” Union Leader, November 17, 2015
  3. Lawsuit Says Utah Law Violates the First Amendment,” Utah Policy.com, November 17, 2015
  4. “‘Safe spaces’ on college campuses run at odds with First Amendment, say law experts,” FoxNews, November 14, 2015
  5. Mark Tushnet, “A Puzzle About the Heckler’s Veto?,” Balkinization, November 4, 2015

The Court’s 2015-2016 First Amendment Docket

Review Granted

  1. Heffernan v. Paterson, N.J. (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here)

** Shapiro v. McManus  (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”)

Review Denied

  1. Center for Competitive Politics v. Harris
  2. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Hines v. Alldredge
  2. Bell v. Itawamba County School Board 
  3. Sun-Times Media, LLC v. Dahlstrom
  4. Electronic Arts, Inc. v. Davis
  5. Miller v. Federal Election Commission 
  6. Rubin v. Padilla
  7. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority
  8. Yamada v. Snipes

Freedom of Information Case

 The Court’s next Conference is scheduled for November 24, 2015.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Last Scheduled FAN, #84: “Can newspapers publish truthful information disclosing police officers’ personal information? — Cert. petition pending

Next Scheduled FAN, #86: Wednesday, November 25, 2015

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