Today the 7th Circuit Court of Appeals told Cook County, Illinois, Sheriff Tom Dart, more or less, that his misplaced fear of sex work doesn’t trump Backpage’s right to free speech in Backpage.com, LLC v. Thomas Dart.
The lawsuit describes a man obsessed with censoring adult-oriented ads. Dart spent six years harassing Visa and Mastercard with threatening letters demanding they stop doing business with Backpage. Backpage operates like Craigslist, hosting user-generated ads for a variety of goods and services. A tiny percentage of those ads are for adult services.
According to the press release his office distributed, the result was: “Sheriff Dart’s Demand to Defund Sex Trafficking Compels Visa and MasterCard to Sever Ties with Backpage.com.”
But now Circuit Judge Posner isn’t having it. In the opinion, Posner wrote:
“[Dart] is using the power of his office to threaten legal sanctions against the credit-card companies for facilitating future speech, and by doing so he is violating the First Amendment.”
Posner goes on. “A public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment.”
Not only is Dart being a dickhead about civil liberties, but he’s also very wrong about Backpage’s role in sex trafficking.
Posner shouts out Cato and Reason to correct Dart’s facts on sex trafficking generally. “Actually, as 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.”
In fact, according to Cato, State Department data indicate that the opposite may be true.
This is a great example of a win for libertarianism. A philosophy predicated on the idea that two shouldn’t be able to curtail the fundamental freedom of one isn’t ever going to do well in the traditional ideal of political machinations. Which is part one of why libertarianism as a “political philosophy” is dumb. Part two is that in philosophy political refers to power, and doesn’t limit itself to that power we call the state. Anyway. Libertarians and anarchists won’t get elected in numbers big enough to change shit, but, we can still gets wins and here’s a great example.
Friend of mine and former sex worker Maggie McNeill explained another instance where Dart fails to grasp what he’s doing in her coverage of the case. Dart doesn’t distinguish sex work from sex trafficking.
“It’s a common conflation, backed by the idea that women are such brainless, innocent creatures we’re unable to have sex for reasons other than pleasure or romance; the idea of actually profiting from men’s desire to have sex with us would never enter our fluffy, pink little brains,” Maggie wrote. “So, even if a woman says she’s doing sex work voluntarily, she’s either lying or suffering from ‘Stockholm syndrome,’ and has actually been coerced by a ‘pimp.’”
The other issues, as friend Liz Nolan Brown has written extensively for Reason, is that websites such as Backpage.com make life safer for sex workers by enabling them to connect with customers online as opposed to on the street. The empirical evidence is strong that moving work indoors helps reduce violence against sex workers.
Dart is also confused about what role Backpage plays in rescuing trafficked children. In fact, as Cato points out, “Backpage has fully cooperated in investigations of actual child exploitation and other noxious activity and one of the foremost experts in trafficking posits that ‘[s]hutting down Backpage would mean that approximately 400 persons per month would not be identified as suspicious and would thus fall off the radar screen’ (because their credit-card tracking information would be lost).”
One interesting thing to note about the threatening letters is that Dart used potential investigation for violating money laundering laws to coerce Visa and Mastercard.
Posner: “The letter cites the federal money-laundering statute, 18 U.S.C. § 1956, thereby intimating that the credit card companies could be prosecuted for processing payments made by purchasers of the ads on Backpage that promote unlawful sexual activity, such as prostitution.”
Dart sent a memo to his staff suggesting they remind the credit card companies by phone, mail, email, or a visit in person of “their own potential liability for allowing suspected illegal transactions to continue to take place’ and their potential susceptibility to ‘money laundering prosecutions … and/or hefty fines.”
And for what? The Justice Department has stated explicitly that the costs of fairly enforcing the money laundering laws as written outweigh the benefits. The Economist has calculated the effectiveness of the laws at preventing actual crime (most of which is non-violent) and calls them a “costly failure.”