gentlemen our first case for argument is back page versus dark street corner  before you start there's a problem the disclosure your disclosure statement here brief says that back page is a delaware limited liability company and a wholly owned subsidiary of another company which is privately held you haven't disclosed the name of honor we can either supplement the statement for the court's purposes i can i can indicate at this point but the media parent is the media parent is a company called i c holdings l l c there's a there's a chain of a variety of different companies but if the purpose of taking down back page dot com as he put it legally or otherwise secondly this was not limited to just a couple of letters being sent the office set up a task fort force that sent letters gauged in aggressive follow up and which the court found could reasonably the district court conquered recently perceived as a threat and further that visa and master card responded immediately to those letters met sheriff dart deadline and severed all ties with backpage dot com as sheriff dart had demanded now the parties don't disagree on any of these findings but simply on the application of law to those findings in this case our position is that the district cour failure to grant a preliminary injunction is based on three fundamental errors of law first that the court misapplied in the supreme court precedent of bantam books versus sullivan informal threats of official sanctions represent an informal prior restraint in violation of the first amendment secondly that the court in reaching this conclusion misallocated the burden of proof requiring proof of the of the compan motivations in responding to the letters and also shifting the burden of proof on whether or not the speech was something that the government could regulate and third the court applied the wrong standard for women or injunction disregarding the factors that are uniquely apple when first amendment cases first with respect to banta books point the court interestingly agreed that the letters and the efforts of church starts office could reasonably be perceived as a threat and agreed that after that th issued that the companies responded to that letter now where the court differs and the reason to reach the conclusion of the bid is to say that it wasn't clear that they were responding to the threat in the letter or just of the  general requests that the card companies be good citizens but in fact in every benchmarks case there is a combination of a request for action and an appeal to being a good citizen and threats and that's what makes the difference between a case where you find an unconstitutional informal prior restraint and one where it's simply a government agency imploring someone to act like a good citizen i didn't see in any of the cases applying phantom books in other circuit idea of separating out the threatening and non threatening parts of the communicate no as a matter of fact that is an innovation that chef guard has come up with in which the district court vied there is no separation there's no effort to parse out threaten from non threatening language and that's true just as a general proposition under first amendment cases because you are not required to demonstrate once the government has crossed the line not required to demonstrate why speech is effect your why speech is chilled street vs new york is a case that we cite for that proposition but also in the bantam books cases it would be impossible it is an object of tests i'm sorry it's an object of test exactly if once you've reached the conclusion that it is a reasonable person would perceive the communication as a  threat then that crosses the threshold for about them books violation and then when you have an extreme reaction to it as you did in this case in this case cutting off all ties then you've made your bantam books case and i don't know how you could maintain a bafta for challenge but you do take the position that there has to be a threat or plus a reaction to make out the cause of action i think is a practical matter all of the cases have found both where there is a threat and a reaction as you as you do here i think in first amendment terms finding a threat of a threat enough is something the government isn't permitted to do but as a practical matter you have cases that come to courts where there has been both a threat and a reaction as you had in this case i mean you had not just the letters being said but you had an aggressive follow up both before the card companies made their decisions and afterwards for example after the the letters were sent you had announced by the morning if your farts threaten to press conference that in fact they have reached that decision but it didn't stop there right at the district court found that there was followed up they followed up to mike to make sure that you couldn't use cards on backpage sheriff's office tried to place ads using credit cards and they extended beyond that the record reflects showing that they wanted to make sure that there were no replacements found to replace the credit cards as a source of income for backpage dot from contacting the governor's office of texas contacting the postal inspector contacting american express even to make sure that you couldn't use a generalized credit for anything in the adult section so made our cases where the court specifically found there was little threat so just based on the fine it's of the district court if you properly apply the law then you would find in this case an informal prior restraint and a violation of the first amendment this ambiguous language in the bantam books scase that's picked up in some of the case law from the other circuits about recipients reaction to the threat as not being voluntary  suggests the injection of a sort of subjective element in the legal standard and again some of the case law from the other circuit seems to pick up on that's but i'm not sure that  that one line one passage in the bantam books case should be read for all it's worth on that score they really are trying to squeeze a lot out of that aren't they it's it's interesting because both sides tend to quote that language about how it was found that this was this was perceived as threatening but it's followed immediately by the line saying that this is based on common experience that people don't like to regard veiled threats from the law enforcement official and that means it is an objective exactly in this case if we have come to you and the credit card companies have not reacted at all and we are alleged that chef started violated our first amendment rights by making the threat with no reaction then it would be a harder case to do that reason picking up on my sister's question on the mean this obviously from my own earlier question bothers me as well why couldn't we simply say that the cause of action is complete when there is in fact a threat or an objective basis and that the question of reaction or redirection really goes to the question of whether it mary injunction is warranted in the particular case i think it could be divided that way but i don't think it's necessary to again in the first momen context where you look at the history of cases where government officials that issued threats and even a chilling effect of the possibility of a reaction is enough again i think it is the specific first amendment context that that makes a significant difference and here where you do have a very tangible reaction and to your question about whether or not preliminary injunctive relief is warranted i think the efforts that sheriff dart has made that there be no replacements for master card and visa looking beyond just their immediate reactions to it the stated purpose of this task force and of this campaign as set forth in strategy memo that was laid out in the record was to choke off all revenues for back page dot com and they took steps to make sure that happened so whatever the motivations may have been for master card and visa once that was accomplished they have gone out of their way to make sure that those revenue sources are not replaced and that's the reason you know as i say i think the the question of whether or not the bantam books case has been made out certainly is clear from this record and certainly enough workups women are injunctive relief we're not evaluating the entire merits of the case at this point just whether or not we have made a e elements of causation here and how it applies in the context the first amendment that he was to me was one of the problems with this parsing out of the letter into threatening and non threatening aspects and it's not a but for requirement at least not that that's not the plaintiff's burden but yes you're right i couldn't agree more and for two reasons i mean one is the fact that the court agreed that the letter was the cause of the termination and once you've reached that conclusion i think that is the completion of making the case for preliminary injunction in atlanta books context the second issue that the court took was to suggest that if there's a burden of proof it should be imported from the circuits cases on retaliation where you have a burden shifting kind of analysis and again there under those cases i think we get the answer is clear that preliminary injunctive relief should be granted first of all where the letter itself is the cause of the credit card companies actions i think stablished that it is a motivating factor and it which point under that test under sort of versus hide  then it would be incumbent upon sheriff dart to prove that it wasn't a reaction to the threats that caused the cut credit card companies to act as they did right and that's relevant only on the question of damages right that's not relevant  violation that's and join a ball since that's right but it is one of the ways in which the court improperly changed the burden of proof or shifted the burden of proof onto back page dot com dot com you'll see a variety of places in the opinion where it says it is up to backpage dot com to prove how much of that site has legal speech and well again in the first amendment context the government doesn't get to presume that that the speech is illegal and it's particularly interesting the background that led to this point in addressing that entire question he tried to make exactly the same argument we brought a nuisance case in northern europe to illinois against craigslist arguing that all of craigslist because as an adult section is therefore illegal improperly equating anything having to do with adult services with illegality he's done the same thing in this case you could substitute the briefs in this case for the one submitted in the president's case and in that case the northern district quite properly said no the burden of proof is on the government and you don't get to presume that those things are equivalent it's important in this case because that's one of the issues that the district court used in weighing the balancing of factors saying that really is u to back page dot com to prove without any when in fact in in the first moment contest exactly the opposite is true church starters expressed frustration with the fact that other states have passed laws trying to ban adult services section on back page and other classified at a better ties in websites and those cases reach the exactly the same conclusion that the first amendment doesn't allow you to presume the illegality and band hope categories of speech which sheriff dart tried to bypass in this interests that are going to be infringed when in fact he was speaking as the government and the government doesn't have for city managers overall i think the case for going to judge it is made but i think beyond that it's important for the court to recognize that the issues here go far beyond any impact on a back page as the amicus brief by center for democracy and technology indicated that this issue with trying to put pressure on in the media to regulate speech that is just police official has to be very careful in what he says this is not dark as a private citizen writing a perceive this as an official threat so while sheriff dart as a private citizen and as a member of the public has a right you believe that i absolutely believe in the evidence that s ridiculous these people these companies they don't feel they can defy an official with the with you know authority there's nothing there you know that that guard has visa has spoken and submitted an affidavit in this court which the district court considered in which their vice president for global bran reputation specifically said he did not view the letter what do you expect him to say your honor we expect are not clean under the threats these this action was taken out of concern that their brand look the tone of this is so unprofessional he talks about a violent industr are potential targets and what about also all people who men who who would like to be seen with a young woman right now that is an aspect of the  dart did not take down the content or proposed to take down the content of web page of back pages web page which was not illegal conduct master card in particular to your honor's question of the recipient receiving this and what can they say mastercard had already decided that they no longer wanted to be affiliated with back page one week before sheriff dart ever sent mastercard made the decision to terminate its relationship with that page before they ever received sheriff starts letter the letter could not have possibly had the effect that is required under bantam books in order for there to be a prior restraint ban two books is quite clear that it is necessary not only to have a threat if the letter is even a threat but there has to be a coercive effect in this case the record was undisputed that mastercard had made the decision to terminate their relationship with back page before ever receiving that letter there could not have been an effect similar to the facts and circumstances in henderson and decided by this court that there has to be a but for cause showing in order for there to be a prior restraint here there was no such showing in fact the evidence was exactly the opposite that master card had decided before they ever received this letter visa and the c e o of fact i why that's why or why did he send them a letter if they already decided sheriff dart was unaware of the decision of master card before he sent the letter but we took discovery in this article as musa visa made the decision as they told you no that's not my question visa made the decision after receiving sheriff started yet well letterman for mastercard that is true it is different from mastercard however the reason for the decision was because they did not want reputational concerns associated with their brand in light of the knowledge that american express and visa i'm sorry and mastercard were no longer  package until after they received the letter once they received the letter they learned that they were going to be the only credit card company who was going to remain doing business with a website that was prolific in posting ads that trafficked women and children for sex visas representatives told sheriff darts representatives that that that they did not want such an association they told the c e o of back page they didn't want to and if a credit card company knuckles on to do that that's a problem if that if there is a threat and there is an effect that is a problem however that is not the facts and circumstances of the intended effect of terminating the service or the relationship or causing the subscriptions to not longer be issued in one sheriff joe i wrote road to a  with teller or something and said i don't like your selling short skirt i think i think it promotes sheriff to to to to express any antipathy that he has to anything he can you speak both as a citizen as a and as a public official to express his opinion so usually there's no limit he can express his opinion are his office stationery on any subject that occurs to him what if he doesn't like what if he doesn't like letter and requires an immediate response and is followed up by e mails and telephone calls by his staff and it's phrased in terms of a demand and it reference legal obligations to report suspicious activity and not participate in money laundering and it's not his official stationery and he's expressing himself as sheriff of cook county not as a private citizen subjectively admitting that i think that and there's you know plenty of evidence that their action was precipitated by this letter because it followed immediately on the heels of receiving the matter as the district court recognized the letter could a jury could possibly find that the letter is a threat at the merits stage with respect to a preliminary injunction however a necessary element for a prior restraint is to find an effect and not not but for causation but that the letter was a motivating factor in producing the disaffiliate which is the part which is the restraint that's the suppression part of the equation and it did have that effect that was clearly the intended effect on sheriff dart's part based on the language of the letter and it had that effect whether the credit card companies would have gotten around to  their own as a subject for the damages trial but it doesn't defeat the first amendment violation the court in green indicated that after if the say able to establish that it was a motivating factor right there's plenty of evidence on that so the burden then shifts to the defendant to establish that there was not but for causation right for purposes of a damages claim but we're here injunction and the basic first amendment violation has been established here the under a preliminary injunction the plaintiff has the burden of a stablish ing the likelihood of success the likelihood of success takes into account right and that the existence of a first amendment violation not whether damages can be limited because the credit card companies would have gotten around to disaffiliate ing at some point anyway and were on had road without the assistance they received from sheriff talked even at a preliminary injunction there can be no cause of action when there is no effect well there was in effect they immediately terminated their affiliation with back page american that's a percentage effect american express and mastercard had already made that decision before this letter ever went out with the right the american express had already  affiliated master charge was on the road but had not yet disaffiliated it disaffiliated immediately after receiving the letter from sheriff dart and there's evidence in the record that shows that that was the  decision the fact that they had thought about doing it ahead of time doesn't defeat the first amendment violation they had not only thought about doing it ahead of time they had made the final decision in advance that they were going to terminate the relationship with master card that is the undisputed evidence in this case in fact went back page attempted to reengage their services their c e o was expressly told that due to  get back into this business in light of ongoing litigation and that you know there's other interpretations of that you're suggesting that it's all undisputed i think it's very hotly disputed in this case within twenty four hours on the part of one credit card company and within forty eight hours on the part of the other under threat of this press conference that was going to follow on the heels of the letter the announcement of that decision was made and it was phrased in terms of a demand a cease and desist letter and characterized by sheriff dart in his press conference as a demand that he made and then he took credit for the for taking down back page by removing its financial sources of financial support the institutions and i mean these are his own he clearly set out to shut them down that's a prior restraint there is no question that sheriff dart was passionate about terminating the content of the illegal content that was posted on back to either institute better measures to filter out unlawful conduct that is posted on that page or stop using revealing talk about better measures sheriff dart and back page had years of prior history in which they had engaged in discussions in an attempt to get back page to institute better measures to stop the trafficking of women and children and back pages web wants he thinks that whole not me that's my question he does not think that back page is file aiding the law for any ads that do not involve unlawful conduct no no you're not answering my question does he think will keep your voice sharp so i guess are you and secondly please try to answer the question rather than give a speech on a different subject does he think that back pages violating the law yes with respect to adult services that a list of unlawful conduct so in other words he thinks back pages violating the law and the next step would be to suggest that any credit card company that does business with back page is an accomplice right now your honor why of course there are accomplices they are not are assisting back page at communicating shareholders communicating to master card that they had become aware of this and you think mastercard didn't know that back page had this adult section before citizens started writing the letter that is beyond a naive and i one knows with back pages certainly man certainly the people who do business with back page such as the credit card companies believes that master card and visa and all and any credit card company that does business with with back page is an accomplice in illegal activity design master card conduct there they provide the service for the underlying for the affiliated banks in fact for visa that is visa europe there was no evidence in this case master card and visa don't know that people the legal conduct it doesn't matter whether it's much illegal or little legal you are engaged in criminal activity sheriff starts own experience with craigslist in which his complaint against craigslist was dismissed due to the communication decency act did not support that he thought that visa and master card were accomplices to a crime he was engaged in criminal activities and mastercard and visa were aware and though being aware provided  hosting or posting these ads and the communication decency act gives back page certain protection based on share of tarts own experience in this space and therefore he was not saying to back page that what they were doing in posting these ads were illegal nor was he saying to visa and master card that what they were doing was being accomplices to this he was bringing it to  master card's attention that back pages ads result in unlawful conduct he says it has become increasingly in the fence a poll for any corporation to continue to willfully play a central role in an industry that reaps and scatch from the victimization of women and girls across the world that will fully the will that's addressed been thank you your honor i'd like to briefly address a couple of the references to the record to make sure there's a full appreciation of something beyond sharp darts broad generalities about the credit card companies reactions as a matter of fact the record doesn't show that credit card with back page dot com but that that decision was not going to be implemented until the end of july it was only after sheriff darts letter was sent that this decision for the one acquiring bank was escalated to being immediate and not a month hence and that's when the decision was spread not just to that one acquired back but all of the acquiring banks for master card as a matter of fact if you look at the record of the appendix of pages two sixty eight to seventy it shows that this escalated t concern because then it was because this was a wall in foresman referral this was considered to be a branded damaging activity and because of that back page was put on a match list which prevented other requiring backs from stepping  it wasn't a decision that was done even for master card let alone for the other card companies but what if the sheriff had removed the language about cease and desist and money laundering and  suspicious activity report obligation and put the rest of this content of this letter into a press release but i think that takes it further afield from a direct threat and all of those are factors companies affiliation with back page to the extent of its adult section it would still be equally significant as a first amendment violation because for the same reason that the state laws failed in trying to close down classified advertising sections you have a blanket threat against this category of speech not everything on the adult section is illegal speech that's right and because that itself represents a prior restraint just as in the back of books cases people were claiming that all the books on their list were obscene without a prior judicial determination some of that may be proscribed of excuse me some of what some of it may be but the government doesn't get to decide that in advance in the case of master card there was no decision before sheriff darts letter arrive to terminate them as a matter of fact if you look at the record even as referred to by the district court it says that officials that these were referring to this as blackmail and the language as threatening in fact in one of the exchanges by master card officials he played fifty two down below one of them quote a reaction by the electronic frontier foundation saying that we shouldn't have informal pressure from public officials forcing financial service companies into deciding which types of speech should and shouldn't be allowed massacre in bees are not supposed to be the arbiters of free speech on the internet and the beast official response internally i think this is the first time i've ever agreed with