The 93-count federal indictment against Backpage operators and former owners bulges with rehashed allegations -- but no charges related to sex trafficking
Zero sex-trafficking charges. That’s the most glaring aspect of a Phoenix federal grand jury’s belatedly unsealed 93-count indictment against seven current and former owners and operators of the online listings site Backpage.com.
The defendants include veteran newspapermen Michael Lacey and Jim Larkin, who were arrested Friday, April 6, and remain in custody.
The FBI seized Backpage as agents were raiding Lacey’s and Larkin’s homes, taking down the website in a baldfaced act of direct government censorship.
The absence of sex-trafficking allegations is significant, given that much of the evidence cited in the Backpage indictment is drawn from a U.S. Senate probe into the company’s activities.
In early 2017, the Senate’s Permanent Subcommittee on Investigations issued its findings in a publication entitled, “Backpage.com’s Knowing Facilitation of Online Sex Trafficking.”
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The subcommittee, headed by Ohio Republican Rob Portman and Missouri Democrat Claire McCaskill, is a branch of the Committee on Homeland Security and Governmental Affairs.
Lacey and Larkin — who sold Backpage in 2015 and founded Front Page Confidential this past year to provide news and commentary on issues concerning the First Amendment — face multiple counts of conspiracy, money laundering, and facilitating prostitution under the Travel Act, a federal law dating back to 1961 that generally makes it illegal to engage in illicit commerce across state or international lines.
The distinction between “prostitution” and “sex trafficking” is a significant one.
Prostitution is consensual commercial sex between adults. Sex trafficking is defined under federal law as occurring when“a commercial sex act is induced by force, fraud, or coercion, or [when] the person induced to perform such act has not attained eighteen years of age.”
Lacey is charged with 79 felony crimes, Larkin with 70. Each Travel Act count could result in up to five years’ imprisonment, and the men face 50 counts apiece. More serious are some of the money-laundering charges, which could result in a maximum of twenty years in prison.
Five other Backpage owners and execs were charged in the indictment, but the U.S. Attorney’s Office singled out Lacey and Larkin, referring to them in court documents as the “masterminds” behind Backpage, which prosecutors call “the internet’s most notorious destination for prostitution advertisements.”
“The government’s case is so weak that it provides no incentive for Mr. Lacey to flee.” — defense attorney Paul Cambria
Prior to their entanglement in the current federal anti-sex-trafficking crusade, Lacey and Larkin were best known as the owners of the Village Voice Media chain of weekly newspapers. With Lacey serving as executive editor and Larkin as CEO, the pair built their empire from the ground up, starting with the flagship Phoenix New Times, which the fellow Arizona State University dropouts co-founded in 1970 in response to the Vietnam War. The two sold Village Voice Media to company insiders in 2012.
The government seeks “a sizable seven- or eight-figure bond” for each of the two former principals, labeling them “a flight risk” and a “danger to the community.” Yet, as prosecutors concede in court filings, neither Lacey nor Larkin has a criminal record and both have complied with court orders in the past.
The other five defendants were released after their arrests, most without having to post bail.
No charges were levied against Backpage’s CEO and owner, Carl Ferrer. But the indictment repeatedly refers to a “C.F.,” whom it identifies as one of Backpage’s co-creators and the person to whom Lacey and Larkin sold their interests in 2015.
The indictment rehashes many of the same arguments and spurious assumptions that have driven prior legal assaults on Backpage’s adult section, which the website shuttered in January 2017 as the Subcommittee on Investigations was preparing to release its report and convene hearings into the company’s business practices.
For instance, the complaint implies that in stripping adult ads of terms that might refer to prostitution, Backpage was deliberately concealing evidence that it knew for a fact that prostitution was afoot. Likewise, the indictment contends, censorship of words like “Lolita,” “teen,” “cheerleader,” “barely legal,” and “Amber Alert” are proof that children are being trafficked for sex.
Never mind that all of the terms are ambiguous and open to interpretation. And in the instance of “Amber Alert,” the company added it to its list of more than 600 banned terms in response to a law-enforcement officer’s suggestion to Ferrer.
For lack of a better place to start, some thoughts on page 32:
1) The fancy legal term for "barely legal" is "legal."
— Alex Frell Levy (@alexflevy) April 10, 2018
The indictment contains other Kafkaesque instances when seemingly commendable acts are cited as knowledge of wrongdoing.
Ferrer’s announcement to employees that they need to ensure that all ad content is legal is portrayed as sinister. Heads-ups about questionable ads to the National Center for Missing and Exploited Children become proof that Backpage knew the ads involved sex trafficking. The same goes for every time Ferrer was called upon to testify in court against a pimp who turned out to have placed an ad on behalf of a woman under his control.
The complaint cites seventeen unnamed trafficking victims linked to ads that appeared on Backpage, some of them involving minors, and three that involved murder. The acts described are horrendous, but the descriptions are apparently included for their shock value, as none of the defendants is charged with facilitating sex trafficking — much less murder — for Backpage’s acceptance of an adult ad.
In total, the indictment cites 50 specific ads that prosecutors intend to tie to sex workers or trafficking victims. But Backpage hosted tens of millions of ads, not all of them adult-oriented. And as federal appeals court judge Richard Posner noted in a 2015 decision, it’s specious to suggest that “everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.)”
The feds’ crackdown is reminiscent of a criminal prosecution in California in October 2016, when Lacey, Larkin, and Ferrer were arrested, held for days without bond, and charged with pimping, all at the behest of then-California Attorney General Kamala Harris.
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Soon after, California voters elected Harris to the U.S. Senate. Since then, not one but two Sacramento Superior Court judges have dismissed most of the state’s charges, which were based on the assumption that ads for escorts and massages on Backpage were in fact peddling prostitutes. (Sound familiar?) All that remain are the money-laundering counts, which seem tenuous without the pimping charges purported to have given rise to them.
Lacey’s detention hearing is scheduled for Wednesday afternoon. In his response to the government’s bail request, criminal defense attorney Paul Cambria blasted the indictment, writing that the arrest “flies in the face of numerous First Amendment rulings, none of which were mentioned in the government’s pleadings to this Court.”
Cambria also noted that the retired journalist “has been no stranger to government overreach and utter disregard of constitutional limits,” comparing this episode of incarceration to the night in 2007 when Maricopa County (Arizona) Sheriff Joe Arpaio had Lacey and Larkin hauled from their Phoenix-area homes and jailed on trumped-up charges.
A pugnacious Buffalo-based lawyer who has represented such high profile clients as porn titan Larry Flynt and shock rocker Marilyn Manson, Cambria rhetorically rolled his eyes at the fact that “the government removed its own main reason for requesting detention” by confiscating the Backpage domain.
More egregious, the attorney contended, has been the U.S. Attorney’s disregard the First Amendment. “For more than five decades it has been the law that the government cannot seize or bar distribution of expressive materials until after an adversary hearing and judicial finding that the materials can be suppressed.”
Cambria was similarly dismissive of the possibility that his client might be a flight risk.
“The government’s case is so weak that it provides no incentive for Mr. Lacey to flee,” Cambria writes. “The government seeks to hold Mr. Lacey liable for ads posted to the Backpage website by third-party users; however this theory has been rejected by every court that has considered it.”