Seventh Circuit sides with Backpage in free speech suit against sheriff


Backpage is an infamous classified ads website that provides an online forum for users to post ads relating to adult services. The sheriff of Cook County, Illinois (i.e. Chicago) sent letters to the major credit card companies urging them to prohibit users from using the companies’ services to purchase Backpage ads (whether those ads were legal or not). Backpage sued the sheriff, arguing the communications with the credit card companies were a free speech violation.

The lower court denied Backpage’s motion for preliminary injunction. Backpage sought review with the Seventh Circuit. On appeal, the court reversed and remanded.

The appellate court held that while the sheriff has a First Amendment right to express his views about Backpage, 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.

Judge Posner, writing for the court, mentioned the sheriff’s past failure to shut down Craigslist’s adult section through litigation (See Dart v. Craigslist, Inc. 665 F.Supp.2d 961 (N.D.Ill.2009)):

The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues by scaring off its payments-service providers. The analogy is to killing a person by cutting off his oxygen supply rather than by shooting him. Still, if all the sheriff were doing to crush Backpage was done in his capacity as a private citizen rather than as a government official (and a powerful government official at that), he would be within his rights. But he 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 unless there is no constitutionally protected speech in the ads on Backpage’s website—and no one is claiming that.

The court went on to find that the sheriff’s communications made the credit card companies “victims of government coercion,” in that the letters threatened Backpage with criminal culpability when, à la Dart v. Craigslist and 47 U.S.C. 230, it was unclear whether Backpage was in violation of the law for providing the forum for the ads., LLC v. Dart, — F.3d —, 2015 WL 7717221 (7th Cir. Nov. 30, 2015)

Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

California court okays lawsuit against mugshot posting website

The Court of Appeal of California has held that defendant website operator – who posted arrestees’ mugshots and names, and generated revenue from advertisements using arrestees’ names and by accepting money to take the photos down – was not entitled to have the lawsuit against it dismissed. Defendant’s profiting from the photos and their takedown was not in connection with an issue of public interest, and therefore did not entitle defendant to the relief afforded by an anti-SLAPP motion.

Plaintiff filed a class action lawsuit against defendant website operator, arguing that the website’s practice of accepting money to take down mugshots it posted violated California laws against misappropriation of likeness, and constituted unfair and unlawful business practices.

Defendant moved to dismiss, arguing plaintiff’s claims comprised a “strategic lawsuit against public participation” (or “SLAPP”). California has an anti-SLAPP statute that allows defendants to move to strike any cause of action “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue …, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

The court held that the posting of mugshots was in furtherance of defendant’s free speech rights and was in connection with a public issue. But the actual complained-of conduct – the generating of revenue through advertisements, and from fees generated for taking the photos down – was not protected activity under the anti-SLAPP statute.

Because the claims did not arise from the part of defendant’s conduct that would be considered “protected activity” under the anti-SLAPP statute, but instead arose from other, non-protected activity (making money off of people’s names and photos), the anti-SLAPP statute did not protect defendant. Unless the parties settle, the case will proceed.

Rogers v. Justmugshots.Com, Corp., 2015 WL 5838403, (Not Reported in Cal.Rptr.3d) (October 7, 2015)

Evan Brown is an attorney in Chicago helping clients manage issues involving technology and new media.

Police department did not violate First Amendment by demoting officer who posted Confederate flag on Facebook

Case illustrates the “frequent gamble” one makes when posting on social media.

When you hear about Georgia, the name Duke, dealing with the cops, and the Confederate flag, you think Hazzard County, right? Or better yet, Daisy Duke. This case had a number of those elements, but presented a much more serious free speech question than Bo or Luke could have ever done.

dukesPlaintiff (named Duke), a captain at Georgia’s Clayton State University police department, posted a picture of the Confederate flag to his Facebook account with the caption “It’s time for the second revolution.” He was not on duty when he posted it, nor did he intend it to be visible by everyone (just friends and family). He claimed that he wanted to “express his general dissatisfaction with Washington politicians.” At the time, the police department had no social media policy that would have prevented the post.

The chief of police demoted plaintiff and cut his pay by $15,000, stating that the Facebook post was inappropriate for someone in plaintiff’s position, and that officers should not espouse political views in public.

Plaintiff sued the police chief alleging, among other things, that his demotion over the Facebook post was a retaliation that violated his First Amendment rights. Defendant moved to dismiss. The court granted the motion.

It held that the police department’s legitimate interest in efficient public service outweighed plaintiff’s interest in speaking. The determination on this issue depended heavily on the content of the communication, and the fact that defendant was a police officer.

While the court acknowledged that plaintiff intended to express his disapproval of Washington politicians, it found that “on its face his speech could convey a drastically different message with different implications.” The court noted that order and favorable public perception were critical. “[A] police department is a ‘paramilitary organization, with a need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers.'” And police departments have a particular interest in maintaining “a favorable reputation with the public.” In sum, the court found, the speech at issue was capable of impeding the government’s ability to perform its duties efficiently.

The fact that the post was made off-duty and just to friends and family did not dissuade the court from finding the demotion to be proper. A local television station picked up the story that plaintiff had made the post. The court noted that “this illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over its further dissemination.”

Duke v. Hamil, 2014 WL 414222 (N.D.Ga. February 4, 2014)

Injunction against blogger violated the First Amendment

Prohibiting former tenant from blogging about landlord was unconstitutional prior restraint against speech.

800px-Taize-SilenceDefendants wrote several blog posts critical of their former commercial landlord. The landlord sued for defamation and tortious interference, and sought an injunction against defendants’ blogging. The trial court granted the injunction, determining that defendants had “blogged extensively about [plaintiffs] and many of these blogs [were] arguably defamatory.” Although the court noted that a trial on the defamation claims was yet to be held, it ordered defendants “not to enter defamatory blogs in the future.”

Defendants sought review with the Court of Appeal of Florida. On appeal, the court reversed and remanded.

It held that injunctive relief was not available to prohibit the making of defamatory or libelous statements. “A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns.” But the court noted a limited exception to the general rule where the defamatory words are made in the furtherance of the commission of another intentional tort.

In this case, plaintiffs alleged another intentional tort – intentional interference with advantageous business relationships. But the court found that plaintiffs failed to present sufficient evidence to show they were entitled to an injunction for that claim. The trial court record failed to support an inference that the defendants’ blog posts had a deleterious effect upon defendants’ prospective business relationships.

Chevaldina v. R.K./FL Management, Inc., — So.3d —, 2014 WL 443977 (Fla.App. 3 Dist. February 5, 2014)

Image credit: By Maik Meid (Own work) [CC-BY-SA-3.0], via Wikimedia Commons

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