Beware the Free Speech Rattler

mountain desert landscape with prominent sign in the foreground with a drawing of a snake and the words: BEWARE Rattlesnakes
Mind the rattler! (photo by Lorie Shaull via Flickr [cropped])
In its prosecution of Backpage’s founders, the U.S. government has trampled on the First Amendment. In response, Front Page Confidential is prepared to bare its free-speech fangs.

Michael Lacey has spent his entire professional life in the newspaper business. With his business partner, Jim Larkin, Lacey cofounded Phoenix New Times during the Vietnam War. The two men would go on to build Village Voice Media, a chain of weeklies that covered a dozen metropolitan areas, from L.A. to New York City and Miami to Seattle, by the time they sold it to company insiders in 2012. Under their stewardship, the publications won thousands of local, regional and national journalism awards, including the Pulitzer Prize.

Along the way, Lacey and Larkin made a lot of friends, and at least as many enemies.

(I consider myself one of the former. I got my first editorial job at one of their papers, Miami New Times, back in 1989, beginning a professional odyssey that included stints at weeklies in the Twin Cities, St. Louis, and New York City. And in the summer of 2017, with their backing, I started Front Page Confidential to cover issues surrounding free speech and the First Amendment.)

These days, 24/7, both Lacey and Larkin wear a black box the size of a Rubik’s cube strapped to an ankle, transmitting their precise position on the planet to agents of the federal government. They’re  forbidden to stray outside the borders of Maricopa County, Arizona, without permission, granted in advance.

Five months ago, on Friday, April 6, 2018, FBI agents broke into and ransacked Lacey’s house, arrested him, and hauled him to a prison complex where they held him for a week. A similar scene played out at Larkin’s home, and at the residences of five of their current or former business associates.

The government claims they laundered money and “facilitated prostitution.”

What they actually did: They published online classified advertisements. Period.

A Matter of Free Speech

The government’s charges are aimed at Backpage.com, which Lacey and Larkin founded in 2004 and sold in 2015. You may have heard of it: It’s the world’s second-largest site of its kind — or it was until the U.S. Department of Justice seized it and shut it down.

Before that, Backpage hosted literally hundreds of millions of ads: Event announcements, folks in search of Ping Pong partners, platonic pals, or intimate relationships. Buyers and sellers of goods: from stereos to sport coats, power tools to powerboats, chiffoniers to chihuahuas. And services: landscapers and manscapers, hot-air-balloon pilots and birthday-balloon artists.

Some of that latter category of ads, aimed at adults, offered adult services.

But the nature and content of the ads on Backpage were of very little concern to the men and women who ran it. That’s because Backpage didn’t post the ads, it hosted them. If, for instance, the bike you put up for sale turned out to be stolen goods, then that was your problem, not Backpage’s.

But you don’t have to take my word for it. It is the law.

Section 230 of the Communications Decency Act of 1996, to be precise, which protects free speech on the internet in very specific legalese: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Color snapshot of journalists Michael Lacey and Jim Larkin with the trophy that commemorates their selection in 2008 as the ACLU of Arizona's Civil Libertarians of the Year
Michael Lacey and Jim Larkin at an ACLU Foundation of Arizona awards banquet in 2008. The group honored the newspapermen with its highest honor: Civil Libertarians of the Year. (via Phoenix New Times)

This is the statute that protects Facebook and Twitter from criminal liability when terrorists or stalkers exploit those platforms.

And, presumably, when sex workers use them to drum up prohibited trade.

An overflowing bench’s worth of judges have have consistently agreed.

Perhaps most notable among them was the brilliant and colorful jurist Richard Posner, who wrote from the federal appeals court bench in 2015 that it was erroneous to suggest that everything published inBackpage’s adult section was 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.”

In the case to which Posner was referring, the presiding judge had stated that the majority of the advertisements in Backpage’s adult section were for sex.

Noted Posner:

“[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.”

In 2016, after California Attorney General Kamala Harris prosecuted Backpage for “pimping,” not one but two state judges tossed out the charges.

“Since at least 2010, public officials and state prosecutors have been pressuring Backpage to remove the ‘Adult Services’ category from the website in an endeavor to combat sex trafficking,” noted Sacramento Superior Court Judge Lawrence G. Brown, who nixed the pimping charges the second time around. “With Backpage’s refusal to comply, a philosophical disagreement between public officials and Backpage as to how best to combat sex trafficking is clearly present.”

The way Judge Brown saw it, “[W]hether this case proceeds depends, in part, on whether Defendants enjoy immunity against these new charges under the CDA. This immunity was provided by Congress, and regardless of where Backpage floats on the tide of public opinion, the immunity must be modified by Congress.”

Funny Judge Brown should mention that.

The fact is, Section 230 used to be the law.

On April 3, 2018 — three days before the FBI shut down Backpage — Congress sent the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA) to the White House for Donald Trump’s signature. The new law rewrote Section 230 in order to create an exception for websites that are involved in the “[p]romotion or facilitation of prostitution and reckless disregard of sex trafficking.”

Lest anyone misunderstand their intent, federal legislators made the law retroactive to the beginning of time. They did so in utter disregard of the Constitution — a fact the Justice Department pointed out in a letter urging them to reconsider.

Both houses of Congress passed FOSTA by large margins. Politicians trumpeted the new lawas if they’d put an end to the scourge of white slavery, when what they did was to hack off a crucial appendage of the First Amendment.

But make no mistake: The feds didn’t arrest Larkin and Lacey for violating FOSTA. Nor does a single one of the charges they’ve leveled against the men involve sex trafficking.

John and Cindy McCain: A Power Couple with an Axe to Grind

His captivity during the Vietnam War and his willingness to tweak President Trump notwithstanding, the late, lionized U.S. Senator John McCain was also an ill-tempered egotist with an elephant’s memory for those who dared to cross him. Going back to the 1980s, when McCain was a carpet-bagging newcomer to Arizona, Lacey and Larkin’s Phoenix New Times worked to bring to light his cozy ties to Charles Keating, the infamous savings-and-loan fraudster.

In 1994 the senator got wind that New Times was poised to take a poke at him again: A reporter had learned that McCain’s wife, Cindy, had stolen from the Phoenix-based charity she operated, in order to feed her addiction to prescription painkillers.

He was powerless to stop the presses, but that didn’t prevent McCain from deploying every ounce of his clout to distort the narrative and present his spouse as a victim.

New Times published “Opiate for the Mrs.” anyway, outlining for its readers how Cindy McCain had forged prescriptions and defrauded her own charity.

In much the same way as Maricopa County Sheriff Joe Arpaio would retaliate against Lacey and Larkin in 2007 after New Times exposed him as corrupt (he threw them in jail), John and Cindy McCain came after the two newspapermen.

It is no coincidence that John McCain was among the original cosponsors of the Senate’s version of FOSTA, the Stop Enabling Sex Traffickers Act of 2017 (SESTA).

And it is no coincidence that both McCains were present in January 2017, when the U.S. Senate Subcommittee on Investigations summoned Lacey and Larkin to the Capitol for a public flogging. This, even though John McCain is not a member of the subcommittee, and Cindy McCain is not a senator.

Finally, it’s no coincidence that on April 6, 2018, when news broke of Larkin’s and Lacey’s arrests, Phoenix’s local media rushed to capture Cindy McCain’s gloating take on video, which she happily provided, even as her husband was dying of brain cancer.

Five years earlier, Cindy had reinvented herself as an expert on sexual exploitation.

She got herself appointed chair of the Human Trafficking Advisory Council at her husband’s namesake McCain Institute for International Leadership, and co-chair of Arizona’s Human Trafficking Task Force. Then she set about using those platforms to spread misinformation about sex trafficking, a crime she purposely conflates with the more mundane profession of consensual sex work. Doing so has allowed her to cast shame upon sex workers — and to cast Backpage as the villain.

Sex Trafficking…or Sex Work?

With eager assistance from legislators like Claire McCaskill and Rob Portman, Cindy McCain continues to peddle the myth of “child sex trafficking.” And it’s an easy sell to fellow politicians and the public at large: Selling children for sex is the most heinous of crimes.

The trouble is, the “epidemic” McCain and her cronies claim to be combating is a scourge of their own creation.

They conjure horrifying statistics — “hundreds of thousands” of sex-trafficking victims in the United States — out of thin air. Because they have no data to support their outlandish claims, they make it up. All the while, their crusade hamstrings social workers, advocates, and law-enforcement officials who do the real and often-thankless work of helping actual trafficking victims get off the streets. By and large, those victims turn out to be runaways who fled problematic or abusive situations at home. (And many are boys.)

What’s more, perhaps the only empirical analysis anyone has bothered to undertake showed that the availability of online “erotic services” advertising coincided with a very significant decrease in violence against women.

To their credit, the people who must depend on sex work to put food on the table and a roof over their heads haven’t taken FOSTA lying down.

They began telling their stories to journalists and speaking out for themselves.

They mobilized on social media.

And, having had their main avenue to subsistence stricken from the internet, they took to the streets.

Photo of Michael Lacey and Jim Larkin, wearing sport coats, outside federal court in downtown Phoenix, Arizona.
Veteran newspapermen Michael Lacey (left) and Jim Larkin outside federal court in downtown Phoenix in April 2018 (photo by Stephen Lemons)

Beware the Rattler

Over the half-dozen years since Lacey and Larkin sold Village Voice Media, they have stayed silent. They heeded their lawyers’ advice to allow things to play out in the courts, where the First Amendment and Section 230 (and, naturally, those same lawyers) do the talking.

That was, and remains, prudent counsel.

But their own personal research has shown that having armed government commandos break into one’s house tends to alter a man’s way of thinking.

They’ve decided to take a cue from the sex workers and to speak out.

The federal government has so far succeeded in closing down Backpage and shackling them with ankle monitors, but it can’t keep Lacey and Larkin off the internet.

They still have the First Amendment. And they have Front Page Confidential.

Watch this space.

For Further Reading:
“Michael Lacey and Jim Larkin Speak Out in Reason.com Profile”
“The U.S. Government’s Trojan Horse War on Prostitution”
“FOSTA/SESTA: A Congressional Boondoggle Exposed”
“How John and Cindy McCain Came to Hate Michael Lacey and Jim Larkin”

About Tom Finkel

Skeptical about nearly everything but my rights and responsibilities. Former editor-in-chief at Village Voice, Riverfront Times, & City Pages. Before that, Miami New Times. Interested human being.

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