The following report contains opinion and analysis that is the author’s alone. 

In an order issued on Monday, July 24, federal Judge Diane Humetewa in Phoenix granted prosecutors significant wins on a series of motions affecting the retrial of veteran newspapermen Michael Lacey and Jim Larkin, set to begin on Aug. 8.

Humetewa’s ruling addressed several, so-called “motions in limine,” in which the parties sought to block certain testimony, arguments, and evidence. The judge denied all four of the defense’s pre-trial motions while granting — either in whole or in part — six of the government’s nine motions, leaving three unresolved for now.

The order restricts various arguments that the defense made during the abortive 2021 trial of Lacey, Larkin, and four co-defendants on charges related to the alleged “facilitation” of misdemeanor state prostitution offenses in violation of the U.S. Travel Act.

Expected to last three months, that trial ended in a mistrial in September 2021 after just three days of testimony due to egregious prosecutorial misconduct.

Then as now, prosecutors sought to hold the accused vicariously responsible for crimes committed by third parties that the government vaguely links to adult-themed ads for dating, escorts, and massage posted by users to the Craigslist-like, classified listings site, Backpage.com, which the government seized and destroyed on April 6, 2018.

In Humetewa’s recent order, prosecutors won limitations on references to the First Amendment and free speech,  the assertion of “good faith reliance on the advice of counsel,” Section 230 of the Communications Decency Act (which in most cases immunizes interactive websites for content posted by users), and Backpage’s previous victories in federal and state courts, which held that both Section 230 and the First Amendment protected the site’s publication of its users’ ads.

Conversely, the defense failed in its attempt to preclude what it considers to be prejudicial and inflammatory statements, testimony, and evidence. It also did not convince Humetewa to block the assertion by prosecutors that escort, massage, and online dating services are “unlawful or presumed to involve prostitution.”

How Humetewa’s rulings play out during the trial will be crucial as the government has signaled that its theory of the case remains the same as in 2021. That approach by the prosecution has already led to one costly mistrial.

Prosecutors Triumphant

In 2021, the defense broadly asserted Backpage’s First Amendment right to publish. At one point, Lacey’s attorney Paul Cambria argued that “all speech and press” — including adult-oriented advertisements, like those that ran in certain sections and subsections of Backpage — “are presumptively protected under the First Amendment.”

The most outrageous of the government’s nine pre-trial motions asked the judge to prevent the defense from mentioning “the First Amendment and ‘free speech’ at any time in the presence of the jury.”

In its response, the defense argued that the defendants “intended to facilitate the First Amendment rights of Backpage.com and its users — not criminal offenses.”

Backpage actually forbade language offering illicit sex for money. During the first trial, one of the government’s key witnesses, a special supervisory agent with the California Attorney General’s Office, admitted under cross-examination that the escort ads he had reviewed on Backpage were legal on their face. He also said that he could not make an arrest for prostitution based on these ads alone, and he knew of no one who had.

Humetewa will allow the accused to “defend these allegations on the grounds that the ads were for lawful business practices, and thus their publication of lawful ads were protected under the First Amendment.”

But the defendants cannot assert that the “facilitation of unlawful business practices, i.e., publishing ads for prostitution” is protected by the First Amendment, nor could they argue that their attorneys advised them that the publication of adult-themed ads was legal, unless they made specific showings to the court.

As to invoking the “advice of counsel” defense in general, defendants would have to demonstrate that: they made a complete disclosure of their activities to their attorneys; they requested their attorneys’ advice as to the legality of a possible action; they were advised it was legal; and they relied on the advice in good faith.

The judge also precluded certain defense arguments concerning Section 230, which immunizes interactive computer services against most civil and state laws. But, she observed, Section 230 does not immunize against federal laws, like the Travel Act, and so, the defense “may not argue that Section 230 of the CDA immunizes the defendants” from the Travel Act counts.

It seems unlikely that defense attorneys would make that specific argument. But there are other reasons a discussion of Section 230 might be relevant, such as its “safe harbor” provision, which allows for the moderation of content posted by Backpage’s users. This could be used to show that the defendants did not act with criminal intent.

Whether such a discussion would be allowed seems unclear.

Prosecutors also sought to prevent defense attorneys from mentioning that Lacey and Larkin have families, extensive ties to the community, and 40-plus year careers in award-winning, muckraking journalism.

Humetewa found such details to be “irrelevant to the allegations,” but she would not bar the defense from bringing up these facts “in a limited and resourceful way.”

Humetewa sided with the government in its bid to preclude references to Backpage’s many victories in federal and state courts. She forbade the defense from “comparing this case to any prior unrelated civil cases . . . in their opening and closing arguments,” reasoning that to do so would “confuse the jury” and “prejudice the government.”

She also precluded references to “certain other litigation, court decisions, rulings, opinions, or results from prior litigation,” a dictate including the mistrial itself.

Three government motions remain unresolved for now: an attempt to bar the defense from discussing the legality of the ads; a bid to stop the defense from criticizing the “legitimacy of the prosecution”; and a motion to preclude the defense from mentioning a meeting between state attorneys general and Craigslist, in which the AGs asked Craigslist to start charging for adult-themed ads, thereby giving law enforcement a paper trail to follow.

Agony of Defeat

In the 2021 trial, prosecutors, in violation of the court’s orders, repeatedly mentioned and elicited testimony about rape, sex trafficking, and child sex trafficking, despite the fact Lacey, Larkin, et al. are not accused of those crimes, nor could they ever be.

The judge at the time, Susan Brnovich, declared a mistrial, stating from the bench that she had given the government some leeway in discussing such subjects, but, “in the opening, and with every witness thereafter . . . the government has abused that leeway.”  Brnovich later recused herself for unknown reasons, with Humetewa becoming the fourth judge to sit on the case.

So, it’s not surprising that the defense moved to preclude “irrelevant and prejudicial testimony,” such as the kind that led to the mistrial. That is, unless this testimony was specifically connected to one of the 50 charged ads in the indictment and one or more of the defendants knew “that the person who was the subject of the charged ad was engaged in prostitution or was being trafficked at the time the ad was posted.”

Humetewa denied the defense’s motion, citing a ruling by Brnovich, in which Brnovich found sex trafficking and child sex trafficking to be “subsets” of prostitution.

Prostitution, normally charged as a misdemeanor, involves illicit sex for money between consenting adults.  By contrast, sex trafficking is a heinous crime involving either children, or adults induced into commercial sex via force, fraud, or coercion.

Brnovich allowed references to sex trafficking as long as the government did not “linger on the details of the abuse sex trafficking victims suffered as a result of being trafficked.”

Humetewa repeated this order, noting that such details “can become irrelevant and prejudicial” to the defendants.

Nor would the government have to tether these details of trafficking and child sex trafficking to one of the 50 ads in the indictment. Instead, Humetewa ruled that the prosecution “need only prove that defendants were aware ” (italics in original) of a conspiracy to facilitate prostitution and participated in it.

Humetewa also denied a defense motion seeking to preclude the prosecution from arguing that “escort services, online dating services, massage services, and adult advertising of such services” are “unlawful or presumed to involve prostitution.”

The judge ruled it was the government’s burden to prove at trial that the specific ads in the indictment “were really ads for prostitution,” instead of “lawfully sanctioned escort, massage, or online dating services.”

She declined to order the prosecution not to allege that the ads were for illegal activities.

Similarly, Humetewa shot down the defendants’ attempt to prevent the government from introducing “evidence of alleged strategies to increase purported ‘prostitution’ ads [on Backpage] not specific to” the 50 ads in the indictment.

The government could also introduce facts that pre-date the allegations in the indictment.

Finally, Humetewa ruled that the government could possibly introduce the statements of two alleged co-conspirators, though they had no connection to the indictment’s 50 charged ads. She withheld making a final decision “until the government lays the proper foundation and explains its relevance.”

Much will depend on Humetewa’s rulings during the course of the trial, but her judgments on these various pre-trial motions arguably made the defense’s road to a not-guilty verdict more precarious than before.

Please also see:
Appeals Court Upholds FOSTA, Narrowing Its Scope, but the Chill on Free Speech Continues
and
Judge Halts Censorship of Legal Speech, MSM Freaks Out