The Backpage trial is on break until Oct. 10; last Thursday's session revealed how federal prosecutors have labored to ruin the lives of ordinary, hard-working employees of the site.
You may remember the passage from George Orwell’s novel 1984, in which protagonist Winston Smith’s torturer tells him, “If you want a picture of the future, imagine a boot stamping on a human face – forever.”
This quote came to mind last Thursday as I listened to the cross-examination of Carl Ferrer, the government’s chief witness in the Backpage trial, which is taking place in Phoenix’s federal court and is currently on an extended break until Tuesday, October 10.
Co-founder and onetime owner of the classified listings giant Backpage.com, Ferrer turned state’s evidence shortly before the government seized and shut down Backpage on April 6, 2018, obliterating the free speech rights of millions of Americans in the process.
The trial is now over a month old, and Ferrer has been on the stand for several weeks: first under the direct examination of the government, and now under cross-examination by attorneys representing the five co-defendants, including award-winning newspaperman Michael Lacey, former executive editor of a chain of alternative weeklies known as Village Voice Media (VVM).
By the end of the day last Thursday, Ferrer was being cross-examined by defense attorney David Eisenberg, who represents Andrew Padilla, Backpage’s former operations manager.
Padilla, along with his immediate subordinate, Joye Vaught, face 50 counts of “facilitating” misdemeanor state prostitution offenses in violation of the U.S. Travel Act as well as one count of conspiracy.
Their three co-defendants — journalist Michael Lacey and two VVM execs, Jed Brunst and Scott Spear — are charged with those same 51 counts as well as additional money laundering and conspiracy charges. Lacey co-owned Backpage.com with his longtime business partner in the newspaper business, Jim Larkin.
Lacey and Larkin sold the site to Ferrer in April 2015. Tormented by what is now a five-and-a-half-year-long prosecution, Larkin committed suicide on July 29, one week before the trial was scheduled to begin.
Padilla was in charge of moderating ads posted to Backpage by its users, removing SPAM and other unwanted content, supervising and training Backpage’s moderators, and responding to the estimated 20,000 law enforcement subpoenas Backpage received during its 14-year existence, from 2004 to 2018.
He answered directly to Ferrer, who ran Backpage and eventually owned the site.
Under Eisenberg’s polite but unwavering questioning, Ferrer admitted Padilla was a “hard worker” tasked with a “tough job” that got tougher as Backpage grew. Padilla was tasked with implementing Backpage’s ever-evolving standards on what could and could not be posted on the site.
“The rules were constantly changing,” Ferrer said at one point, later adding that Padilla’s job was “to enforce the rules” as Backpage’s leadership determined them. Ferrer has copped to one count of conspiracy as part of a sweet plea deal with the government. He gets to keep some of his assets, his Mercedes, his house, and is unlikely to do any time.
And all he has to do is throw his former colleagues under the proverbial bus.
Founded to compete with Craigslist.org, Backpage had much of the same user-generated content Craigslist had, including ads for housing, cars, antiques, etc. Both sites offered sections for adult-themed content: legal ads for escorts, massage, dating, striptease, and so on.
In 2010, Craigslist succumbed to pressure from politicians and NGOs and censored its site, removing its “adult services” section.
Though some of that content migrated to other parts of Craigslist, the situation created “a firehose of content” for Backpage, according to Ferrer’s testimony. By contrast, Backpage resisted demands of would-be censors, insisting on its right to publish under the First Amendment.
A former forklift operator, Padilla began as an $11-per-hour wage slave with the company, eventually working his way up to becoming a manager with increasing responsibility.
Eisenberg went through email after email between Padilla and Ferrer, noting that Padilla would email Ferrer after midnight, early in the morning, and on weekends, indicating that Padilla was working 24/7.
In his opening statement at the beginning of the trial, Eisenberg pointed out that Padilla was always on call for law enforcement officials seeking information about endangered women and children, sometimes answering police inquiries in the middle of the night.
Padilla and Vaught are honorable, hard-working everyday people. Prosecutors charged them as a sinister means to an end: railroading Lacey and Larkin.
The Iron Heel
In his interrogation of Ferrer, Eisenberg walked through the site’s ever-tightening standards. In one email from Ferrer’s immediate superior, VVM Vice President Scott Spear, Spear told Ferrer that Backpage should be “a good corporate citizen.”
The rule for the adult category would be “the Playboy standard,” i.e., sexy and erotic, but no photos of sex acts or genitalia.
Money-for-sex language was forbidden, as were long lists of “coded terms” suggestive of sex acts, such as “back door,” “head doctor,” and the always popular, “trip to Greece.”
An offending term would cause the post to be either removed or edited. Eventually, banned terms would number more than 26,000, with a filtering system implemented to delete the words and phrases before an ad was posted.
In one 2010 email from Padilla to someone in sales and marketing, Padilla wrote, “I’m empowering the Phoenix staff to start deleting ads where the violations are extreme and repeat offenses . . . when we ban a user, we need it to stick for 30 days.”
Despite what the government suggests, there was nothing illegal or ethically wrong about such moderation. On the contrary, the U.S. Congress encouraged content moderation by interactive websites with the passage of Section 230 of the Communications Decency Act of 1996.
Section 230 provided immunity, in most cases, to websites for lawsuits and state criminal prosecutions related to content posted by a site’s users. It also gave the site’s owners and operators safe harbor for the removal of any third-party content they found “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
But federal Judge Diane Humetewa, the fourth judge to sit on the case, has ruled that, for the most part, Section 230 cannot be mentioned, because the statute does not immunize against federal criminal laws, such as the Travel Act.
Both federal and state courts consistently found that Backpage was operating legally, but those cases are, for the most part, not allowed to be referenced before the jury.
The portrait Eisenberg painted of his client during his questioning of Ferrer was of a self-motivated man dedicated to his job and doing his best to meet the demands of moderating content on a site that was experiencing exponential growth.
According to previous defense filings, in April 2012, users posted 3.3 million ads to Backpage overall. Backpage’s combination of electronic and human moderation blocked, banned, or removed more than 1 million ads that same month, referring some 400 posts to the National Center for Missing and Exploited Children (NCMEC) for possible investigation by law enforcement.
Question: So, how was Padilla’s role at Backpage in any way criminal?
Answer: It wasn’t.
The ads were legal on their face, though the government, and Ferrer, claim that all of Backpage’s ads were “blatant” prostitution ads. What about legal forms of sex work, escorting, striptease, etc.? How did Ferrer know that the adult ads on Backpage were for illicit sex work?
Pressed by one of the other defense attorneys on this point, Ferrer called it an “educated guess.” Fortunately, the police need something more to make a prostitution bust: something called “probable cause. Guessing doesn’t count.
Basically, the government wanted Padilla and Vaught to roll on Lacey and Larkin and testify against them. When they declined, the government seized money set aside for their defense in lawyers’ trust accounts, forcing their private attorneys to withdraw from the case.
Now taxpayers pick up the tab for their very competent court-appointed counsel.
The government’s vindictiveness knows no bounds. In the weeks prior to trial, prosecutors insisted on a hearing before a magistrate judge to put the government’s already-rejected plea deals on the record and force the defendants to publicly state that they rejected these offers.
During the hearing, prosecutors said the 50 counts of “facilitating” prostitution under the Travel Act and the related conspiracy count each carry a maximum sentence of five years in prison. They added that the ultimate sentence could be longer if a defendant was found guilty on all charges.
Prosecutors offered Padilla a stipulated sentence not to exceed 12 months and a day if he pled guilty to the conspiracy count.
Appearing telephonically, he said no.
The government wanted Vaught to plead guilty to one conspiracy count, with her sentencing deferred for 24 months. If she abided by the prosecution’s conditions, the government would move to dismiss the charge, prosecutors said.
Vaught also appeared telephonically and rejected the offer.
It’s a common expression that innocent people plead guilty every day. Defendants face something called a “trial penalty,” if they reject a plea deal, go to trial, and are convicted. That is, they risk being sentenced to more time than if they took the plea deal.
Concerning the quote above from 1984, it is true that we do not live in a totalitarian police state.
At least, not yet.
Yet, the U.S. government’s tactics in the Backpage case very much resemble that Orwellian boot smashing into the faces of well-meaning, everyday people.
Even if the jury finds Lacey and his co-defendants not guilty of all charges, the government’s iron heel has already scarred the lives of the defendants and their families.
Larkin and his family most of all.
The trial resumes Tues., Oct. 10, at 9 a.m. For regular updates during breaks in the trial, follow me on Twitter/X @stephenlemons.