FAN 86.2 (First Amendment News) “Vulgar is not violent” — Posner enjoins sheriff in online classified advertising case

Judge Richard Posner

Judge Richard Posner

Judge Richard Posner was again at his best in Backpage.com v. Dart. It took him but seventeen days after oral argument in the case (to say he was forceful would be an understatement ) to issue his opinion for the Court.

In true Posnerian form the opinion was blunt (“The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation”), skeptical of dubious claims (“[A]s explained in an amicus curiae brief filed by the Cato Institute, Reason Foundation, and DKT Liberty Project, citing voluminous governmental and academic studies, there are no reliable statistics on which Sheriff Dart could base a judgment that sex trafficking has been increasing in the United States”), and not prudish in its discussion of adult sex (“One ad in the category “dom & fetish” is for the services of a “professional dominatrix”— a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually. See What It’s Actually Like Being A Dominatrix” [link omitted]).

Moreover, Posner is not one to blindly accept convenient rationalizations made by counsel on appeal: “At oral argument Dart’s attorney reminded us that ‘nowhere in Sheriff Dart’s letter does it say that he thought that they [the credit card companies] were accomplices to a crime.’ But the letter implies that they are—and it was the letter that prompted the credit card companies to abandon Backpage. They are unlikely to reconsider on the basis of a lawyer’s statement at oral argument, months after the initial threat.”

And then there was the no-nonsense injunction he issued in the case:

Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com.

Sheriff Dart shall immediately upon receipt of this order transmit a copy electronically to Visa and MasterCard and all other recipients of his June 29, 2015, letter (includ- ing therefore the directors of and investors in Visa and MasterCard), as well as to the Chief Inspector of the United States Postal Service.

Backpage.com shall not be required to post a security bond.

There is more, much more, but read the opinion.

Robert Corn-Revere represented Backpage.com on appeal.

Editorial Comment: Make of him what you will, but Richard Posner is a rara avis in today’s world: He writes his own opinions; he is straightforward; he cuts to the conceptual quick; and does it all without fanfare but with a measure of sophistication worthy of a great jurist. In more ways than one, he puts the Nine to shame.   

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