Although Posner spends much of his opinion ridiculing Dart’s attempt to repackage his legal coercion as counseling from a concerned citizen, the core of his decision reaffirms two key First Amendment principles. The first is that
government agents cannot replace outright censorship with “official bullying” in order to slip past the strictures of the Constitution.......
The second First Amendment principle at stake here is the right of websites to curate and organize information free from government constraint.
Section 230 of the Communications Decency Act already protects websites from liability when users post illegal material. But what about the more basic right of Backpage (and websites like
Yelp and Google) to assemble, classify, and publish vast amounts of data as they see fit? T
he Supreme Court has suggested that the transmission of information is a type of speech—which seems especially true on Backpage, where information is conveyed through expression. Does the First Amendment really permit the government to pressure websites into removing information it doesn’t like?
For Posner, the answer is a vehement no. His decision is a definitive rejoinder to officials like Dart, who cloak censorial intentions (shutting down adult ads) in the garb of a noble battle (stemming sex trafficking). We might stop a lot of crimes by permitting censorship of the Internet, trading our First Amendment freedoms for the vague promise of greater safety. Posner’s response to this temptation is one worth taking to heart: The trade-off isn’t worth it.