In a motion filed Thursday in federal court in Phoenix, government attorneys have — for the second time — asked federal Judge Diane Humetewa to exclude any mention of the First Amendment in front of the jury during the Backpage trial.

Yes, that’s right, prosecutors want no talk of free speech in a case that’s all about free speech.

Lawyers with the Arizona U.S. Attorney’s Office allege that veteran newspaperman Michael Lacey’s attorney Paul Cambria made inappropriate references to free speech and the First Amendment in his opening argument on Aug. 31.

The motion reads, “Counsel for Defendant Lacey made the legal argument in his opening statement that if a person responds to an ad and engages in ‘sex for money, the platform isn’t responsible for that, unless it was clear on the face of the ad that it was definitely a crime.'” 

That Backpage should not be held accountable for acts of third parties who posted or responded to an adult-themed ad on Backpage — as long as the ad was legal on its face and, thus, protected by the First Amendment — should be self-evident to all.

But it’s not to the prosecutors, who claim Cambria’s statements were in violation of Judge Diane Humetewa’s previous order, responding to an earlier attempt by the U.S. Attorney’s Office to forbid the utterance of “First Amendment” or “free speech” before the jury.

But the wording of Humetewa’s order seems more nuanced. It reads:

The Court has previously stated that ‘[t]he First Amendment does not protect ‘offers to engage in illegal transaction.’  And ‘[a]s alleged, Backpages’ efforts to promote its website facilitated prostitution and were not protected business practices.’ The Government will bear the burden of showing as much at trial. Defendants certainly may 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. They may not, however, assert that their facilitation of unlawful business practices, i.e., publishing ads for prostitution, is activity that is protected by the First Amendment.

To address what it sees as a transgression by Cambria, the government wants the judge to read a “curative” instruction to the jury, ordering the jury to disregard what Cambria said about the First Amendment.

The prosecution also wants the judge “to clearly rule that defense counsel shall make no more references to the First Amendment in front of the jury because doing so prejudices the United States by invoking a nullification argument based upon generalized appeals to the First Amendment or ‘free speech.'”

Additionally, the government objected to a statement by Cambria during his opening that is undeniably true.

Describing the government’s 2018 takedown of Backpage, Cambria stated that “the government came in with no conviction by a judge, no conviction by a jury, and no conviction by anything or anybody but they shut it down. . . . [M]illions of people who never abused Backpage were silenced.” 

Indeed, millions of people were silenced, because there were millions of ads for apartments, cars, jobs, etc., as well as legal ads for escorts, massage, dating, etc. According to court filings, about nearly two-thirds of all ads on Backpage in its heyday were in non-adult categories.

The government contends that all adult-themed ads are illegal, but this is clearly not the case. Backpage did not allow money-for-sex language and employed heavy moderation to keep that language off the site.

Which is why only one of the 50 charged ads in the indictment allegedly had a money-for-sex offer: one ad out of hundreds of millions of ads that ran on the site from 2004 to 2018.

‘Legality’ of the Ads

The government does not want a fair fight. And that’s why, a few months back, prosecutors asked the judge to preclude any defense discussion of the “legality” of the adult-themed ads on Backpage.

The request was highly ironic given that during the first Backpage trial — which ended in a mistrial due to egregious prosecutorial misconduct — the prosecution’s lead witness, Brian Fichtner, an investigator with the California Attorney General’s Office, testified on cross-examination that the scores if not hundreds of ads he reviewed as part of a failed 2015 investigation into Backpage were legal on their face.

Fichtner said he could not make an arrest based on the text and images in the ads alone, and he knew of no one who had. He would have to witness an illegal offer, and the ads by themselves were not enough to give him probable cause that a crime had been committed. He even agreed that sex workers had First Amendment rights, like all other Americans.

Interestingly, Fichtner is on the government’s witness list and may be called to testify. That certainly explains why the government didn’t want any talk of the “legality” of the ads at the second trial. If Humetewa had agreed with them, it would have likely undermined the defense’s cross-examination of Fichtner.

But Humetewa ruled against the prosecution on that one. During a pretrial hearing in July, which already seems like it happened a million years ago, the judge told prosecutors, “It’s the government’s burden to show that these are illegal ads,” adding that the legality or illegality of Backpage’s adult ads was at “the heart” of the case.

Backpage v. Dart

The government was successful in convincing Humetewa to forbid any reference to the tsunami of federal and state court cases that found Backpage to be protected by both Section 230 and the First Amendment.

But during his opening statement, prosecutor Andrew Stone seemed to open the door to the mention of at least one, the 2015 case Backpage v. Dart, in which Seventh Circuit Appeals Court Judge Richard Posner found in favor of Backpage, ruling that Sheriff Tom Dart of Cook County, Illinois, had violated the First Amendment by threatening MasterCard and Visa, telling the credit card companies that they may be violating the law if they processed payments for Backpage ads.

Stone told the jury that in 2015 MasterCard and Visa stopped doing business with Backpage because Backpage supposedly had a bad reputation. He did not explain the real reason the credit card companies stopped doing business with  Backpage: It was an unconstitutional letter from Dart with an implicit threat that scared away the credit card companies.

So, in his opening statement last week, which immediately followed Cambria’s, Gary Lincenberg, an attorney for one of Michael Lacey’s co-defendants, pointed out Stone’s omission, telling the jurors about Dart’s threat. The prosecution objected, and Humetewa overruled the objection.

Lincenberg continued, saying:

“What the evidence will show in this case is that all of the issues with Sheriff Dart were resolved in a manner that gave comfort to our clients, that in fact Sheriff Dart was the one who was wrong in
threatening to shut them down.”

This issue was tussled over in a previous hearing, where Lincenberg argued that if the prosecution brought up the credit card issue, it was only fair to allow him to make reference to Backpage v. Dart. Humetewa seemed willing to allow him to do so, but in a limited way.

It’s too bad the case can’t be discussed in full. This case and the other legal victories by Backpage go to the state of mind of the defendants: If federal courts say you are operating legally, then you would assume that, yes, you are within the white lines of the law.

Posner was unusually adept at understanding the nature of adult-themed ads, and his ruling stands as one of the best examples of why law enforcement cannot presume the illegality of adult-themed advertisements.

He wrote:

Nor is Sheriff Dart on solid ground in suggesting 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.) One ad in the category “dom & fetish” is for the services of a “professional dominatrix”—a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually . . . It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution. The district judge remarked “that the majority of the advertisements [in Backpage’s adult section] are for sex”—but  a majority is not all, and not all advertisements for sex are advertisements for illegal sex. There is no estimate of how many ads in Backpage’s adult section promote illegal activity; we just gave examples of some that do not.”

If the defendants are convicted in spite of past rulings like this one, it will truly be a tragedy.

Note: Trial is scheduled to continue on Tuesday, Sept. 12, after a delay of about a week due to one of Lacey’s co-defendants contracting COVID.

Please also see:
Backpage Defendant Catches COVID, Trial Delayed (w/Update)
and
Michael Lacey’s Attorney in Backpage Case: Lacey’s a ‘First Amendment Guy’