Sheriff Thomas Dart, of Cook County, is a crusader against prostitution, sex trafficking, and related criminal activity. He has concentrated his efforts recently on Internet platforms such as Craigslist and Backpage, which have an “adult” section as thriving and variegated in its offers as any free weekly newspaper in a major metropolitan area. Dart is far from alone in opposing sex work, but like many crusaders, he feels free to move beyond the law’s limits to pursue higher goals. For example, he sent letters threatening Visa and MasterCard, which process payments for Backpage, with a series of legal and extra-legal consequences should the firms continue to do business with Backpage. Visa and MasterCard stopped. Backpage sued Dart.
Yesterday, the Seventh Circuit, in a concise and cutting opinion by Judge Richard Posner, rejected Dart’s attempt to paint his actions as informal suasion, and enjoined him from continuing his crusade. (The opinion brilliantly cites XOJane on being a dominatrix, discusses people who dislike pets, and casually drops a reference to phone sex.) It turns out the First Amendment means threats from Sheriff Dart to MasterCard get treated differently than threats from you or I. If I complain to MasterCard about its interaction with BackPage, and threaten to write a Tweet denouncing the company, no one at MC is going to reach for a Tums. Sheriff Dart, though, has a lot more firepower – albeit none of it lawful. 47 USC 230(c)(1) prevents Backpage from being held liable civilly, or under state criminal law, for content provided by a third party, such as the folks who advertise in the Adult section of the site. Backpage isn’t entirely in the clear: if the site violates federal law it can be prosecuted (see 230(e)(1)). So, Dart can ask the feds to go after Backpage, but he can’t successfully prosecute or sue the site himself. The caselaw on this point is littered with the failures of better lawyers who have tried, and Dart himself went after Craigslist as a public nuisance and lost badly.
Dart was cunning enough, though, to know that he didn’t need to win in court against Backpage if he could beat them another way, such as cutting off their funding. That meant targeting payment processors, the favorite 21st century trick of law enforcement. He did just that, along several dimensions. First, he told Visa he’d hold a press conference about their relationship to Backpage – the contents of which would depend on whether they had severed their relationship with the platform. The content wasn’t subtle: “Obviously the tone of the press conference will change considerably if your executives see fit to sever ties with Backpage and its imitators. Of course we would need to know tonight if that is the case so that we can ensure the Sheriff’s messaging celebrates Visa’s change in direction as opposed to pointing out its ties to sex trafficking.” (opinion at p.8) Message received: a Visa employee referred to the exchange as “blackmail.” (p.8)
Second, he raised the possibility of federal criminal liability for the site for money laundering, which is a bit like a Pop Warner football coach threatening Miami with NCAA sanctions for violating collegiate rules. It’s not Dart’s decision to make.
Third, Dart wanted Visa and MasterCard to cut all transactions with Backpage, not just those related to the Adult section. The goal, obviously, is deterrence: to make it massively costly for Backpage to have an Adult section, even at the price of cutting off unrelated (and harmless) speech.
Why would Visa and MasterCard listen to a blowhard of a local sheriff? This is a question I tackle in a paper forthcoming in the Minnesota Law Review, Against Jawboning. Threats and informal pressures are routine in the modern administrative state. The problem is when officials engage in jawboning – when they threaten action at the edges of or wholly outside their legal authority, as Dart did. Jawboning is particularly problematic for Internet platforms, which largely subsist on third-party content. Any one piece of that content generally earns a minuscule amount for the platform. But if government threatens the platform for hosting that material, the Internet firm faces the full cost of the potential penalty and of defending against the action. It’s just good economics to comply, and to take down the material. Or, in this case, to drop Backpage as a customer. As Posner notes,
The revenue [MasterCard and Visa] derived 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. (pp. 13-14)
Moreover, successfully defending any legal action is not a slam dunk. Defendants win most Section 230 cases, but the results are variegated. And judges make mistakes – in this case, the district court judge denied a preliminary injunction to block Dart’s power grab (with some particularly muddled reasoning about Sheriff Dart’s First Amendment rights, IMO). Thus, even very weak legal arguments can compel Internet platforms to censor content.
The Article argues that jawboning, in the context of Internet intermediaries, is normatively illegitimate. (If you’re unsympathetic to Backpage, which is understandable, you might consider the Obama administration using the banking system to cut off services to gun store owners, or the Bush administration trying to coerce ISPs into retaining data about their users’ activities. All three of these case studies are described in the Article.)
The trouble is that it’s quite hard to constrain jawboning. Legislation could narrow officials’ ability to operate, but it is difficult to keep them from threatening to do so, from threatening to call in someone who has enforcement authority, or from lobbying for more power. Constitutional doctrine imposes only weak and uncertain limits, via the unconstitutional conditions doctrine. Here, the state action and standing requirements operate to bar some plaintiffs from seeking relief, at least in federal court. As the Article argues, “Put simply, the political branches find jawboning too easy, attractive, and powerful to impose meaningful internal or interbranch checks on the practice. And, the demands of the modern administrative state make regulators wary of limiting informal enforcement.” Finally, hoping that regulators themselves forgo jawboning as a tool is to wish away the problem.
What can we do? I offer a few small-scale solutions: applauding firms that resist jawboning and decrying those who knuckle under (to provide a counterweight to governmental pressures on reputation); encouraging companies to be transparent about when and how jawboning occurs, perhaps with analogues to warrant canaries; and using the term “jawboning” as a term of disapprobation, in much the way the term “censorship” operates in common parlance.
The problem with jawboning is that, unlike in the case of Backpage and Dart, it typically operates offstage, with companies that are averse to the risk either of liability or bad publicity. Counterintuitively, this is what makes the weak formal legal position of enforcers like Dart so effective: their power operates best in an atmosphere of uncertainty and asymmetric costs. Hopefully the Seventh Circuit’s opinion will stiffen the backbones of companies, like Backpage, that face jawboning.
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