Case: 1:15-cv-06340 Document #: 1 Filed: 07/21/15 Page 1 of 22 PageID #:1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BACKPAGE.COM, LLC,
No. ___________________

Plaintiff,
v.
THOMAS J. DART, Sheriff of Cook County,
Illinois,

COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF AND
DAMAGES

Defendants.

For its complaint, Plaintiff Backpage.com, LLC (Backpage.com) alleges as follows:

INTRODUCTION
1.

This is an action pursuant to 42 U.S.C. 1983 and 1988, and the Declaratory

Judgment Act, 28 U.S.C. 2201, to enjoin, declare unlawful and recover damages for the actions
of Cook County Sheriff Thomas J. Dart (Sheriff Dart) demanding that credit card associations
sever business relationships with Backpage.com, LLC and discontinue allowing use of their
cards for purchases on the Backpage.com website, thereby effecting an informal extralegal prior
restraint of speech without due process in violation of the First and Fourteenth Amendments and
the Communications Decency Act (CDA), 47 U.S.C. 230.
2.

For over six years, Sheriff Dart has pursued a campaign against online classified

advertising websitesfirst Craigslist and then Backpage.comdemanding they shut down

portions of their sites for adult-oriented ads posted by users. At every turn, Sheriff Dart has been
stymied by the Constitution, federal law, and court decisions holding that such ads are protected
speech and that websites are immune from state-law civil or criminal liability.

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3.

In 2009, Sheriff Dart sued Craigslist, alleging the website was a public nuisance

and facilitated prostitution, but this Court summarily dismissed the action. Dart v. Craigslist,
Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009). When, in 2010, Craigslist caved in to quasi-official
pressure and removed its adult services category, Sheriff Dart shifted his focus to
Backpage.com, threatening criminal investigations and prosecution unless it also eliminated its
adult category and escort ads on the site. Consistent with Backpage.coms longstanding efforts
to preclude improper ads and assist law enforcement, it sought to work with Sheriff Darts office
on screening and security measures, including requiring the use of credit cards for adult ads,
which Sheriff Dart requested at the time and Backpage.com has long done. But Backpage.com
refused to capitulate to the Sheriffs demands for censorship.
4.

Sheriff Dart has acknowledged that cases interpreting federal law preclude his

efforts to censor Backpage.com, but decries the law as antiquated, nonsensical, and an
absurdity. Thus, he decided to go out-of-the-box by disregarding the law and instead
pressuring credit card companiesAmerican Express, Visa and MasterCardto cut off use of
their cards for purchases on Backpage.com, with the aim of eliminating the websites ability to
do business altogether. Because of Sheriff Darts officious demand that the card companies
defund and cease and desist dealings with Backpage.com, Visa and MasterCard blocked use
of their cards for any and all purchases on the website. American Express did the same for
purchases in the adult category.
5.

Sheriff Darts actions are an unconstitutional prior restraint of speech without

legal authority or due process. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

The

First Amendment precludes a government official from banning a forum of speech simply
because he dislikes it. Prior restraints are presumptively unconstitutional and can be imposed

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only in the most exigent of circumstances, requiring the least restrictive means to further a
compelling state interest and requisite procedural safeguards. Sheriff Darts actions do not come
close to passing constitutional muster.
6.

Sheriff Darts actions to cripple Backpage.com and all speech through the site are

an especially pernicious form of prior restraint. He has achieved his purpose through false
accusations, innuendo, and coercion, whereas, if he had brought suit directly or Cook County had
attempted to pass a law to shut down the website, Backpage.com would have had a fair
opportunity to respond and defeat such efforts, given well-established law.

Backpage.com

received no notice or opportunity to be heard before card services were terminated. Moreover,
Sheriff Darts actions have not only infringed Backpage.coms rights to publish and distribute
speech, but the rights of millions of the websites users to post and receive protected speech.
7.

Accordingly, in this action, Backpage.com seeks declaratory and injunctive relief

and damages, including a declaration that Sheriff Darts actions are unlawful and
unconstitutional; an injunction requiring him to cease such actions and retract his letters to the
credit card associations; a preliminary injunction returning the parties to the status quo before the
credit card companies precipitously terminated services; damages to compensate Backpage.com
for loss of revenues and goodwill and infringement of its constitutional rights; and punitive
damages to provide punishment and as deterrence for Sheriff Darts intentional conduct
recklessly indifferent to protected rights.
PARTIES
8.

Plaintiff Backpage.com, LLC is a limited liability company, organized and

existing under the laws of Delaware, with its principal place of business in Dallas, Texas.

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Backpage.com operates an online classified advertising service available to the public in all fifty
states and the District of Columbia.
9.

Defendant Thomas J. Dart is, and was at all times relevant to this Complaint, the

duly elected Sheriff of Cook County, Illinois. He is the highest-ranking law enforcement official
for the County, whose powers and duties include acting as the conservator of the peace in the
County to prevent crime and maintain the safety and order of the citizens, as well as powers to
arrest and refer offenders for prosecution. 55 ILCS 5/3-6021. Sheriff Dart is responsible for
establishing and implementing policies for the County as related to his duties for public safety
and policing. Sheriff Dart is sued in his official and personal capacities. MCI Telecomm. Corp.
v. Illinois Bell Tel. Co., 222 F.3d 323, 345 (7th Cir. 2000).
JURISDICTION AND VENUE
10.

This action arises under the United States Constitution, particularly the First and

Fourteenth Amendments, as well as the Civil Rights Act, 42 U.S.C. 1983 and 1988, and the
Communications Decency Act, 47 U.S.C. 230.
11.

This Court has original jurisdiction over these federal claims pursuant to 28

U.S.C. 1331 and 1343.

12.

This Court has authority to grant the requested declaratory judgment pursuant to

28 U.S.C. 2201 and 2202 and Federal Rule of Civil Procedure 57.
13.

This Court has authority to issue the requested injunctive relief pursuant to

42 U.S.C. 1983 and Federal Rule of Civil Procedure 65.

14.

This Court has authority to award attorneys fees and costs pursuant to 42 U.S.C.

1988.

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15.

Venue is proper in the United States District Court for the Northern District of

Illinois pursuant to 28 U.S.C. 1391(b) because the events giving rise to the claims occurred
within this District and, on information and believe, the Defendant resides in this District.
FACTUAL ALLEGATIONS
A. Background Regarding Backpage.com.
16.

Backpage.com

is

an

online

classified

advertising

service,

located

at

www.backpage.com, which began providing service in 2004.

17.

Backpage.com is available to users throughout the United States and is organized

geographically by states and municipalities. Thus, in Illinois for example, users can post and
review ads for Bloomington, Carbondale, Chambana, Chicago, Decatur, La Salle County,
Mattoon, Peoria, Rockford, Springfield, and/or Western Illinois.
18.

Users of Backpage.com may post and review ads in a number of categories (e.g.,

local places, community, buy/sell/trade, automotive, musician, rentals, real estate, jobs, dating,
adult and services) and subcategories.

Users post over six million ads every month.

Backpage.com is the second-largest classified ad website in the United States, after Craigslist.
19.

Users provide all the content for ads they post on Backpage.com using an

automated interface. Backpage.com does not dictate or require any content, although it does
block and remove user-supplied content (discussed below).
20.

Users may post individual ads for free in most categories, although up to July 6,

2015, Backpage.com charged for certain ads and services. For example, Backpage.com charged
$5-$17 for users to post in the adult category and $1 for dating ads, with charges payable by
major credit or debit cards. These charges discouraged abusive posting and provided data to help
track users engaged in illegal activities. Indeed, law enforcement officials, including Sheriff

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Dart, have urged that classified ad websites such as Backpage.com should require payment by
credit cards because of the user information this provides.
21.

For ads of all types, until July 6, 2015, Backpage.com also charged users for ads

posted nationally or in multiple markets, and for more prominent or repeat-ad placement.
22.

The three major credit card companiesAmerican Express, Visa and

MasterCardallowed use of their cards on Backpage.com and permitted banks to provide

merchant services to the company for eleven years, from 2004-2015.
23.

Backpage.com prohibits illegal content and activity on its website and takes

extensive steps to prevent such misuse, especially to guard against any form of human trafficking
or child exploitation. For example, Backpage.coms Terms of Use prohibit any ads for illegal
services

or

posting

any

material

that

exploits

minors

in

any

way.

http://chicago.backpage.com/classifieds/TermsOfUse. Before users can post or view ads in the

adult category, they must affirm they are at least eighteen years old and accept the sites Posting
Rules, which mirror the prohibitions of the Terms of Use and also state that any suspected child
exploitation will be reported for law enforcement investigation. In addition, every ad on the
website contains a link for users to report if they believe the ad may be improper, emphasizing
that concerns about any possible threat to a child should also be reported to
abuse@backpage.com.
24.

Links are also provided at many places on the site to the Cybertipline of the

National Center for Missing and Exploited Children (NCMEC) and a User Safety page
addressing the issue of human trafficking. In addition, Backpage.com prominently features an ad
from a national support and rescue organization, Children of the Night (Want Out? National
Free Help 24/7: 1-800-551-1300. Tired of Turning tricks? Pimps Dont Care. We Do!).

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25.

Backpage.com also takes extensive measures to police user posts. This multi-

tiered system includes automated filtering and two levels of manual review by over 100
personnel. The filter scans for more than 100,000 terms, phrases, URLs and email and IP
addresses. The first manual review assesses ads in the adult and dating categories before they
are allowed to appear on the site, and the second level examines nearly every such ad after
posting, as a double-check for potentially improper content. Through its review processes,
Backpage.com blocks or removes over a million ads per month and immediately reports any ad
that may concern child exploitation to NCMEC (approximately 300 per month).
26.

Backpage.com regularly works with local, state and federal law enforcement

officials in connection with investigations and prosecutions, including responding to subpoenas

and other information requests (most within 24 hours), providing training to law enforcement
officials, and removing and blocking posts at their request. In some instances, Backpage.com
personnel conduct additional Internet research to provide law enforcement further information to
assist in rescuing victims and arresting and prosecuting criminals. Law enforcement officials
often commend Backpage.com for its support and cooperation, and that includes praise from
Cook County officials.
B. Sheriff Darts Crusade Against Online Adult-Oriented Advertising.
27.

On information and belief, Sheriff Dart began contacting Craigslist in 2007

objecting to its erotic services category, which at the time allowed users to post adult-oriented
ads. In March 2009, Sheriff Dart filed a civil action in this Court against Craigslist, Dart v.
Craigslist, Inc., No. 09 C 1385 (N.D. Ill. Mar. 5, 2009), claiming the erotic services section
constituted a public nuisance and seeking an injunction to force Craigslist to eliminate adultoriented ads. The Court dismissed the suit under Fed. R. Civ. P. 12(c). It held that Craigslist

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was immune from liability under Section 230 of the Communications Decency Act (CDA), 47
U.S.C. 230, which provides that online services cannot be treated as the publisher or speaker
of any information provided by another information content provider, id. 230(c)(1), i.e., users
who post ads on Craigslist. Dart v. Craigslist, 665 F. Supp. 2d at 961. As the Court stated,
online services do not cause postings except in the sense of providing a place where people
can post, they are not culpable for aiding and abetting their customers who misuse their
services to commit unlawful acts, and having an adult services category is not unlawful in
itself nor does it necessarily call for unlawful content.

Id. at 966, 968-69.

The Court

concluded:
Sheriff Dart may continue to use Craigslists website to identify and pursue
individuals who post allegedly unlawful content. But he cannot sue Craigslist for
their conduct.
Id. at 969 (internal citations and footnote omitted).
C. After Craigslist Succumbed to Public Pressure Tactics, Sheriff Dart Shifted His
Crusade to Backpage.com.
28.

In September 2010, Craigslist shut down its adult services category in response to

public pressure from a group of state attorneys general (after initially resisting the pressure as
improper censorship). Less than a week later, the AGs targeted Backpage.com, and Sheriff Dart
joined, with his office announcing that it had focused on Backpage.com as the new
battleground.
29.

In January 2011, Sheriff Darts office wrote Backpage.com stating that it had

been conducting undercover online investigations of the website, had determined the site is
being openly used as a conduit for illegal prostitution activity, and insisted that Backpage.com
be brought into legal compliance by remov[ing] the Personals and Adults sections of [the]
website.

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30.

Sheriff Darts office wrote Backpage.com again in March and June, 2011,

demanding, among other things, that Backpage.com [r]equire posts in the Adults section be paid
using credit cards and provide customers identifying information to law enforcement agencies
upon request. Backpage.com responded to the Sheriffs office by explaining its screening
procedures and cooperation with law enforcement, noting that the website did require payments
by credit or debit cards and routinely provided identifying information from cards in response to
valid law enforcement requests. Following meetings with Backpage.com personnel, the Sheriffs
office wrote:

We all came away impressed not only with the work done so far by

[Backpage.com], but also with [your] candor and sincerity .

31.

Nonetheless, in January 2012, Sheriff Darts office returned to its demand that

Backpage.com eliminate the adult category, threatening prosecution under Illinoiss human
trafficking statute, 720 ILCS 5/10-9, if Backpage.com did not immediately cease and desist[].
Sheriff Dart also made public statements, asserting that Backpage is a conduit to criminality
and need[s] to be held accountable.
32.

In January 2014, Sheriff Dart wrote Backpage insisting it respond to a twelve-

page list entitled Request for Information and Site Modification, which, among other things,
demanded that Backpage.com [r]equire user[s] to pay fees with major credit card.
33.

In response to Sheriff Dart and other politicians demands that it shutter the adult

category on its website, Backpage.com has steadfastly maintained that censorship is not a
solution to human trafficking or child exploitation, but rather that law enforcement and other
authorities should work with websites to prevent, investigate and prosecute criminal activity and
to rescue victims.

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D. Cases Establish that Escort Ads on Backpage.com Are Protected Speech Under the
First Amendment and CDA Section 230.
34.

While Sheriff Dart continued his vendetta, legislatures in three other states

Washington, Tennessee, and New Jerseypassed criminal laws targeting Backpage.com. In

each instance, federal courts enjoined the laws, finding them unconstitutional under the First
Amendment and preempted by Section 230 of the CDA. Backpage.com, LLC v. McKenna, 881
F. Supp. 2d 1262 (W.D. Wash. 2012); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805
(M.D. Tenn. 2013); Backpage.com, LLC v. Hoffman, 2013 WL 4502097 (D.N.J. Aug. 23, 2013).
Noting that escort ads have long been permitted (and escort services are licensed and regulated in
many states), these cases held that the states efforts to regulate or effectively block such ads
would likely chill protected speech. McKenna, 881 F. Supp. 2d at 1282. The courts rejected
arguments that the laws only prohibited advertisements for illegal transactions and instead found
that they were overbroad and could not survive strict scrutiny. Hoffman, 2013 WL 1249063, at
*8. Further, the laws violated CDA Section 230 because they sought to impose liability on
websites for publishing third-party content, they would encourage websites either to restrict
speech or to relax their current self-policing, and Section 230 preempts all state civil and
criminal laws. McKenna, 881 F. Supp. 2d at 1273-75; Cooper, 939 F. Supp. 2d at 825. As the
Tennessee court summarized:
Child sexual exploitation is an evil that states have an undisputed interest in
dispelling. However despicable this evil, though, the Constitution stands as a
shield against broad assaults by states on the rights of their citizens. The
Constitution tells us thatwhen freedom of speech hangs in the balancethe
state may not use a butcher knife on a problem that requires a scalpel to fix.

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Cooper, 939 F. Supp. 2d at 813. In all three cases, the courts ultimately entered permanent
injunctions and awarded Backpage.com attorneys fees.

See, e.g., Backpage.com, LLC v.

Cooper, 2013 WL 1249063 (M.D. Tenn. Mar. 27, 2013).

35.

More recently, a federal court in Massachusetts barred tort claims against

Backpage.com by plaintiffs who claimed they were victimized because of ads that appeared on
the site. Doe v. Backpage.com, LLC, 939 F. Supp. 2d 805 (D. Mass. 2015). Consistent with
Dart v. Craigslist and M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041 (2011),
the court held Backpage.com immune under Section 230.
E. Sheriff Darts Admissions That He Cannot Censor Backpage.com Under the Law.
36.

Sheriff Dart is well aware of the federal law and casesbeginning with his own

failed suit against Craigslistholding that online escort ads are protected speech and
governmental authorities cannot force websites to ban such ads. He has admitted this by railing
that Courts continue to follow antiquated laws to the point of nonsensical outcomes and
absurdity, and asserting that Congress is too hamstrung to act to change outdated language
in the Communications Decency Act. See Dart Letter to Charles W. Scharf, CEO of Visa, Inc.
(June 29, 2015), attached hereto as Exhibit B. Indeed, in June 2014, Sheriff Dart joined Senator
Mark Kirk to propose that federal law be changed, publicly asserting their purpose was to
target and combat online advertisers like Backpage.com.

Senator Kirks proposed

legislation was not enacted, and, as reported in the press, presented thorny free speech
concerns. See Juan Perez Jr., Kirk joins Cook officials in push to fight Internet sex trade, CHI.
TRIB. (Mar. 24, 2014), http://articles.chicagotribune.com/2014-03-24/news/chi-kirk-joins-cookofficials-in-push-to-fight-internet-sex-trade-20140324_1_backpage-com-mark-kirk.

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F. Sheriff Darts Alternative Tack to Shut Down Backpage.com By Cutting Off Credit
Card Services.
37.

As Sheriff Darts spokesman has admitted, [a]fter the legislative and litigious

efforts failed, his office decided it needed to come up with an out-of-the-box idea, and
looked to the financial route, recognizing that transactions on the website would simply not
be possible if Visa and MasterCard would say no more.

Kim Bellware, Credit Card

Companies Abandon Backpage.com Over Sex Trafficking Complaints, Huffington Post (July 1,
2015), http://www.huffingtonpost.com/2015/07/01/backpagecom-credit-cards_n_ 7705708.html.
The Sheriffs office then moved full speed ahead and devoted a team to working almost fulltime on the effort. Id.
38.

On June 29, 2015, Sheriff Dart sent letters to the CEOs of Visa and MasterCard in

which he demanded and indicated he sought to compel them to defund and sever ties with
Backpage.com. His press release about the letters said this expressly:
SHERIFF DARTS DEMAND TO DEFUND SEX TRAFFICKING COMPELS
VISA AND MASTERCARD TO SEVER TIES WITH BACKPAGE.COM
Press Release, Cook County Sheriff (July 1, 2015), attached hereto as Exhibit A,
http://www.cookcountysheriff.com/press_page/press_BackPage_07_01_2015.html.
39.

The letters left no doubt about Sheriff Darts demand, his threatened pressure and

the consequences if the card associations did not accede. Writing under his letterhead as Cook
County Sheriff, he insisted the companies immediately cease and desist from allowing your
credit cards to be used to place ads on Backpage.com. See Ex. B (Visa letter); see also Dart
Letter to Ajaypal Banga, President and CEO of MasterCard, Inc. (June 29, 2015), attached hereto
as Exhibit C. He wrote that his office ha[d] objectively found that Backpage.com promote[s]
prostitution and facilitate[s] sex trafficking, with no support for this statement and despite his

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knowledge the site actively works to prevent trafficking or exploitation and regularly works with
law enforcement (including Sheriff Darts office) to combat it. Noting that he is the county
authority charged with eradicating such trafficking, the Sheriff not-subtly alluded to the card
associations legal dut[ies] to file Suspicious Activity Reports, suggested they could also be
required to alert law enforcement authorities of other possible problems, and made sure his
threat was plain by citing statutes imposing criminal penalties for money laundering, allowing
termination of a financial institutions status as an insured depository institution, and permitting
investigations and enforcement actions

Sheriff Darts letter also made clear he intended to

continue oversight of the card associations by asking each company to identify a contact person
[w]ithin the next week. See Exs. B, C. And, Sheriff Dart has stated that the letters were only a
part of a larger campaign Cook County planned to launch [to] pressure the credit card
companies. Tierney Sneed, Under Pressure, Major Credit Cards Cut Ties With Backpage.com
Over

Sex

Ads,

Talking

Points

Memo

(July

1,

2015),

http://talkingpointsmemo.com/news/mastercard-dumps-backpage; see also Aamer Madhani,

Backpage.com Thumbs Nose at Sheriff After Visa, MasterCard Cut Ties, USA TODAY (July 9,
2015) (reporting that Dart wrote the U.S. Postal Service chief inspector to attempt to block users
from buying credits for use on Backpage.com by mailing checks to the company),
http://www.usatoday.com/story/money/

2015/07/09/backpage-free-adult-services-ads-

mastercard-visa/29931651/.
40.

In less than 48 hours, MasterCard and Visa both announced they were terminating

card services and would cease doing business with Backpage.com. Sheriff Dart wrote to the
companies on Monday, June 29, 2015, and, as stated in a press release from his office, [b]y

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Tuesday afternoon, MasterCard agreed to disassociate itself from Backpage, with Visa following
suit Wednesday morning. See Ex. A.
41.

Visa and MasterCard acknowledge they banned use of their cards on

Backpage.com and terminated merchant services to the company because of Sheriff Darts
demands and compulsion. In a press statement, MasterCard stated it terminated card services for
Backpage.com because of the Sheriffs letter, regarding it as having confirmed illegal or
brand-damaging activities.

Aamer Madhani, Under Pressure, MasterCard Stops Doing

Business with Backpage.com, USA TODAY (July 1, 2015), http://www.usatoday.com/story/

money/2015/06/30/mastercard-ceases-doing-business-backpage/29536177/.

Visa wrote to

Backpage.coms acquiring bank directing that it could no longer process transactions because
Visa had received allegations from US law enforcement that the merchant backpage.com is
linked to child prostitution and human trafficking and had been requested to impose an
immediate close down. See also Mathew Zeitlin, Backpage.com Cut Off From Credit Card
System Over Sex Trafficking Claims, BuzzFeed (July 1, 2015), http://www.buzzfeed.
com/matthewzeitlin/backpagecom-cut-off-from-credit-card-networks#.uww892ZwD.
42.

Backpage.com received notice from its acquiring banks and credit card processors

on July 1 and 2, 2015, that they could no longer process Visa and MasterCard transactions and
were terminating their merchant agreements for Backpage.com effective immediately.
43.

On information and belief, Sheriff Darts office previously contacted American

Express and pressured it to terminate use of its cards on Backpage.com as well. Bellware, Credit
Card Companies Abandon Backpage.com, Huffington Post (July 1, 2015) (Darts office had
previously reached out to American Express, which already complied.). On April 30, 2015,
American Express informed Backpage.com it was disallowing use of its cards for any purchases

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in the adult category of the website.

American Express did not indicate its reason for

terminating, but Sheriff Dart has since stated that he contacted and caused American Expresss
decision.
44.

MasterCard has also listed Backpage.com as a terminated merchant on the

Member Alert to Control High-Risk (MATCH) file. This list, maintained jointly by MasterCard
and Visa, prevents processing of credit card payments worldwide for any listed merchant, now
including Backpage.com. Thus, because of Sheriff Darts actions, Backpage.com is barred from
credit card services of any of the three largest card companies or any acquiring banks or credit
processing companies.
G. Effects of Sheriff Darts Actions and Coercion of MasterCard and Other Card
Associations on Backpage.com and Its Users.
45.

Sheriff Darts actions and the credit card companies acquiescence to his pressure

have cut off nearly all revenue to Backpage.com (leaving only Bitcoin as a means of payment,
which accounts for a small percentage of purchases on the website). This affects not only adult
escort ads but also other ads for dating, housing, services, trades, and sales of goods, among
others. In his zeal to prevent the few improper ads that users may post despite Backpage.coms
efforts to prevent them, Sheriff Dart has taken it upon himself to eliminate the website
altogether.
46.

Beginning on July 6, 2015, Backpage.com ceased charging for ads after the credit

card companies terminated as a result of Sheriff Darts demands. Backpage.com began offering
users a free promotional code in some areas (FREESPEECH) to allow them to post ads free of
charge until Backpage.com can obtain relief for Sheriff Darts actions. It later allowed users to
post ads free of charge without inputting a promotional code. Backpage.com took this step

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because disrupting or precluding its ability to provide services to users severely harms the
websites goodwill and users rights to post speech on the site.
47.

Providing services for free can only be a temporary measure, however. All

publishers need revenues to survive, and the First Amendment precludes coercive government
actions to choke off revenues to silence speech it disfavors. Sheriff Darts actions and the
termination of credit card services have also harmed Backpage.coms efforts to police and
preclude improper ads. Imposing charges and requiring users to pay by credit cards discourages
improper postings and provides information for law enforcement. Without such charges, the
volume of ads (including spam) increases and Backpage.com necessarily must devote resources
and personnel to address these problems, detracting from its efforts to police the website.
CLAIMS FOR RELIEF
COUNT I
Prior Restraint of Speech
(First and Fourteenth Amendments, 47 U.S.C. 230, and 42 U.S.C. 1983)
48.

Backpage.com incorporates all previous paragraphs as if fully set forth herein.

49.

Backpage.com provides an online forum for speech of millions of users across the

country. Escort advertising and adult-oriented postings are protected speech under the First
Amendment and Section 230 of the Communications Decency Act, as are ads in all of the many
other categories on the Backpage.com website.
50.

Sheriff Dart and Cook County could not lawfully enact an ordinance to shut down

the Backpage.com website, as such a law would be overbroad and would not survive strict
scrutiny under the First Amendment.

Sheriff Dart also cannot bring suit to shutter

Backpage.com or the adult category under state civil or criminal laws, as he well knows from his
unsuccessful suit rejected in by this Court in Dart v. Craigslist, 665 F. Supp. 2d at 961.

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51.

Sheriff Darts actions constitute an extralegal and unconstitutional prior restraint

of speech. As established by Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), government
officials cannot censor or chill speech through an informal process of coercive threats or
insinuation.
52.

Prior restraints of speech are the essence of censorship, Near v. Minnesota, 283

U.S. 697, 713 (1931), the most serious and the least tolerable infringement on First Amendment
rights, Nebraska Press Assn v. Stuart, 427 U.S. 539, 559 (1976), and bear[] a heavy
presumption against constitutional validity. Bantam Books, 372 U.S. at 70.
53.

Sheriff Darts actions do not fit within any of the narrowly defined exceptions to

the prohibition against prior restraints. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 559 (1975).
54.

Sheriff Dart cannot establish that his actions in demanding that the credit card

companies defund Backpage.com were the least restrictive means to accomplish a compelling
state interest. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813
(2000). If allowed to stand, Sheriff Darts actions will eliminate an entire forum for online
speech and millions of permissible and constitutionally protected posts in order to target a
handful that may be unlawful but cannot be detected or blocked.
55.

Sheriff Darts efforts to close down an entire forum for online speech are grossly

overbroad and are governed by no discernable legal standards. City of Lakewood v. Plain Dealer
Pub. Co., 486 U.S. 750, 770 (1988).
56.

Sheriff Darts actions also violate Section 230 of the CDA, 47 U.S.C. 230, as he

has no right or authority to preclude or seek to prosecute Backpage.com under state law for
publishing third-party content.

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Case: 1:15-cv-06340 Document #: 1 Filed: 07/21/15 Page 18 of 22 PageID #:18

57.

As a direct result of Sheriff Darts actions, Backpage.com has suffered and absent

relief from this Court will continue to suffer damages for lost revenue, harm to its business and
goodwill, and infringement and deprivation of its rights under the Constitution and federal law.
Also as a direct result of Sheriff Darts actions, if not remedied, users of Backpage.com have
suffered and will continue to suffer infringement and deprivation of their constitutional rights.
58.

At all times and for all actions as alleged in this Complaint, Sheriff Dart acted

under color of state law. His actions have resulted in deprivation of rights and privileges secured
by the Constitution and federal laws of Backpage.com and its millions of users. Accordingly,
this Court may and should grant declaratory and injunctive relief, damages and attorneys fees
and costs under 42 U.S.C. 1983 and 1988.
COUNT II
Deprivation of Due Process of Law
(First and Fourteenth Amendments and 42 U.S.C. 1983)
59.

Backpage.com incorporates all previous paragraphs as if fully set forth herein.

60.

A prior restraint of speech, if otherwise permissible, may be imposed only if it

provides for requisite procedural safeguards to guard against suppressing constitutionally

protected speech. Southeastern Promotions, 420 U.S. at 559; Freedman v. Maryland, 380 U.S.
51, 58 (1965).

Government actions effecting a prior restraint require a prompt judicial

determination of whether speech is unlawful or protected, and, more specifically: (1) the
burden of instituting judicial proceedings, and of proving that material is unprotected, must rest
on the censor, (2) any restraint prior to judicial review can be imposed only for a specified
brief period and only for the purpose of preserving the status quo, and (3) a prompt final
judicial determination must be assured. Southeastern Promotions, 420 U.S. at 560.

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Case: 1:15-cv-06340 Document #: 1 Filed: 07/21/15 Page 19 of 22 PageID #:19

61.

Sheriff Darts actions to accomplish ultra vires informal censorship had none of

the procedural safeguards constitutionally required. He did not institute any judicial proceeding
to determine that all speech on Backpage.com is unlawful; indeed, when he filed a proceeding
against Craigslist six years ago, his arguments were rejected by this Court. Sheriff Dart has not
indicated or proposed that he will file a judicial action to determine the legality of his actions, but
instead has touted that he has achieved his objective extra-judicially. Backpage.coms only
recourse to obtain a prompt judicial determination is to bring this action and ask the Court to
grant immediate relief.
62.

And, importantly, Sheriff Darts actions and the informal prior restraint he has

caused did not preserve the status quo, but rather destroyed it. The status quo when Sheriff Dart
set out to pursue his out-of-the-box unlawful actions was that the credit card companies
allowed use of their cards for purchases on Backpage.com, as they had for over eleven years.
Backpage.com and its users are entitled to appropriate relief from this Court to reinstate the
status quo to remedy Sheriff Darts unlawful and unconstitutional actions.
63.

Sheriff Darts actions have deprived Backpage.com due process of law. Sheriff

Dart gave Backpage.com no notice or opportunity to be heard before contacting Visa and
MasterCard to demand they cease and desist providing services. Sheriff Darts actions have
stigmatized and threaten to preclude Backpage.com from doing business altogether, which
infringes its liberty and property interests under the Fourteenth Amendment.
64.

As a direct result of Sheriff Darts actions, Backpage.com has suffered and absent

relief from this Court will continue to suffer damages for lost revenue, harm to its business and
goodwill, and infringement and deprivation of its constitutional rights. In this regard, too,

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Case: 1:15-cv-06340 Document #: 1 Filed: 07/21/15 Page 20 of 22 PageID #:20

Sheriff Dart acted under color of state law, and this Court should grant declaratory and injunctive
relief, damages and attorneys fees and costs under 42 U.S.C. 1983 and 1988.
COUNT III
Declaratory Judgment and Preliminary and Permanent Injunctions
(28 U.S.C. 2201 and 2202; Fed. R. Civ. P. 57 and 65)
65.

Backpage.com incorporates all previous paragraphs as if fully set forth herein.

66.

This action presents an actual case or controversy between Backpage.com and

Sheriff Dart concerning rights under the Constitution and federal law. Declaratory relief is
therefore necessary and appropriate.
67.

Injunctive relief is necessary and appropriate in this action because Sheriff Darts

actions are unconstitutional, violate federal law, and have caused and will continue to cause
irreparable harm to Backpage.com and its users unless enjoined. Sheriff Dart has continued his
campaign to shut down Backpage.com even after succeeding with his demand that Visa and
MasterCard terminate services.
68.

Immediate injunctive relief is also appropriate and fundamentally important in

this case.

The loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.

Elrod v. Burns, 427 U.S. 347, 373 (1976).

Absent immediate preliminary relief to enjoin and correct Sheriff Darts actions, his informal and
extralegal prior restraint may succeed by making it impossible for Backpage.com to continue
doing business and offering its website as a forum for users across the country.
69.

Accordingly, with this Complaint, Backpage.com is also filing its Motion for

Temporary Restraining Order and Preliminary Injunction, urging that the Court should grant
emergency and immediate relief.

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Case: 1:15-cv-06340 Document #: 1 Filed: 07/21/15 Page 21 of 22 PageID #:21

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Backpage.com respectfully requests that this Court enter
judgment in Plaintiffs favor and against Defendant Sheriff Dart and provide the following relief:
A.

A temporary restraining order and preliminary injunction granting appropriate

relief to return the parties to the status quo before Sheriff Darts actions to coerce
and demand that credit card companies terminate use of their cards by users of
Backpage.com;

B.

A declaratory judgment stating that Sheriff Darts actions are unconstitutional,

constitute an unlawful prior restraint under the First and Fourteenth Amendments,
and violate 47 U.S.C. 230;

C.

A permanent injunction to preclude Sheriff Dart from taking any actions to

coerce, threaten, or intimate repercussions directly or indirectly to credit card
associations,

other

financial

institutions,

or

other

parties

concerning

Backpage.com;
D.

An order directing Sheriff Dart to retract his cease and desist letters to Visa and
MasterCard and any other similar communications to other financial institutions
or other parties, including the United States Postal Service;

E.

Monetary damages in an amount to be determined by the Court to compensate for

Sheriff Darts actions, censorship, deprivation of constitutional rights and
Backpage.coms losses of revenue and goodwill, and expenses;

F.

Punitive damages in an amount to be determined by the Court as punishment for

Sheriff Darts conduct and to deter repetition;

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Case: 1:15-cv-06340 Document #: 1 Filed: 07/21/15 Page 22 of 22 PageID #:22

G.

Backpage.coms costs and expenses of this action, including attorneys fees under
42 U.S.C. 1988; and

H.

Such other and further relief as the Court deems just and proper.

DATED: July 21, 2015.

By:

/s/ Christopher F. Allen

Christopher F. Allen
PAUL HASTINGS LLP
71 S. Wacker Drive
Chicago, IL 60606
Telephone: (312) 499-6000
James C. Grant
Ambika K. Doran
DAVIS WRIGHT TREMAINE LLP
1201 Third Avenue, Suite 2200
Seattle, WA 98101
Telephone: (206) 622-3150
(pro hac vice applications to be filed)
Robert Corn-Revere
Ronald G. London
Lisa B. Zycherman
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Ave., N.W., Suite 800
Washington, D.C. 20006
Telephone: (202) 973-4200
(pro hac vice applications to be filed)
Robert D. Luskin
Gerald S. Sachs
PAUL HASTINGS LLP
875 15th Street, N.W.
Washington, DC 20005
Telephone: (202) 551-1700
(pro hac vice applications to be filed)
Thomas P. Brown
PAUL HASTINGS LLP
55 Second St.
San Francisco, CA 94105
Telephone: (415) 856-7000
(pro hac vice application to be filed)
Attorneys for Plaintiff

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