Michael Lacey's attorney Paul Cambria argues that his client believed Backpage was operating legally, while federal prosecutor Kevin Rapp misleads and misdirects.
This post repurposes recent Twitter/X reports from the #BackpageTrial, now near its close in Phoenix’s Sandra Day O’Connor U.S. Courthouse. For regular updates, please follow the writer @stephenlemons.
Friday, Oct. 27, 2023: Cambria at Bat
This a.m. in the #BackpageTrial, Michael Lacey’s attorney Paul Cambria delivered a valiant defense of his client’s good faith belief that the classified listing site he co-owned with the late Jim Larkin was operating legally.
Best evidence for this: Backpage.com’s cooperation with law enforcement, responding to more than 20,000 subpoenas over the 14-year life of the company, with employees testifying against pimps and exploiters, training law enforcement, and taking cop calls in the middle of the night whenever women and children were at risk.
Cambria told jurors Backpage (BP) worked with more than 100 law enforcement agencies (LEAs) including the FBI, receiving countless attaboys from cops across the country.
The Director of the FBI himself, Robert Mueller, signed a certificate in 2011 thanking BP for “outstanding cooperation” with an investigation of “great importance.” Cambria displayed the certificate on flat screen monitors in the courtroom. He hit the monitor in front of him repeatedly, asking, “If the FBI is giving them an award thanking them, why would they think they’re breaking the law?”
Fancy seeing you here!
Not so long ago, Robert Mueller was FBI Director and praising #Backpage for its help with sex trafficking stings. (Tucked inside a motion from a recently charged Backpage founder Michael Lacey.) pic.twitter.com/orWBigpMAJ
— Megan Cassidy (@meganrcassidy) April 10, 2018
To prosecutors’ suggestion that reciprocal links to The Erotic Review (TER) — a site that features purported “reviews” of sex workers — signaled illegality, Cambria pointed to a female FBI agent at the prosecution table, heretofore unidentified, calling her by name, saying the FBI knew of BP’s business practices.
The FBI is “the most elite crime fighting organization in the entire world — you bet they knew” about TER, he said. The TER links were not hidden, and BP eventually forbade them.
Prosecutor Kevin Rapp said during his summation earlier that answering subpoenas was no big deal, because you have to respond to them by law. But Cambria said that “there’s no law requiring [BP] to keep the records.”
This goes to a quote from an editorial by Lacey, in which Lacey wrote, for the first time, because of BP, “the world’s oldest profession” had “transparency.” If there were no records, there would’ve been nothing to subpoena.
As those familiar with this case know, the eradication of Backpage, combined with FOSTA/SESTA, made the world far more dangerous for trafficking victims. Adult advertising, once so ubiquitous that it was in the Arizona Republic and the Yellow Pages, fled overseas to sites beyond the reach of a U.S. subpoena. A 2021 GAO report attests to this. Sadly, it did not make it into evidence.
Lacey’s bailiwick was the editorial side of Village Voice Media (VVM), not the business side, of which BP was a part. Ferrer testified that Lacey was “a layer away” from BP, as the business side was run by Ferrer’s boss, Larkin. Lacey relied on Ferrer’s assurances that BP was on the up and up. In one email, Ferrer told Lacey, “I don’t have prostitution ads.” (Note the “I,” not “we.”)
Several cops testified during trial that they couldn’t make a prostitution bust based on suggestive text & pics of scantily clad women in ads. The ad was merely a “starting point.” Even coded sex-for-money language was not allowed. You can find more explicit language on dating apps. BPs ads were legal, protected by the First Amendment. Cambria mentioned that one prosecution witness, an exec in an NGO, described a split in the anti-trafficking world between abolitionists & reformers. Lacey was in the latter camp, justifying another Lacey quote from an old email — which prosecutors love to quote — to the effect that he and Larkin believed in legalizing prostitution. (Note: The difference between decrim and legalization may have been lost on him at the time,as it was on me till I began reporting on this case in 2016.)
The money laundering counts? All the gvt showed was movement of $ from one bank to another. There was no concealment. Taxes, paid. Revenue, legit. BP sold ad space. Period.
Cambria told the jury that it exists to “stand between the government and a fellow citizen,” adding, “If you’re with us stay with us.”
His voice softened, he asked them to treat Lacey as they would want a family member treated.
“The last words on the case will be yours,” he told them. “There should be only two: not guilty.”
Thursday, Oct. 26, 2023: Larkin’s Ghost
The #BackpageTrial recessed at 4:30pm on Thursday in Phoenix’s federal court with prosecutor Kevin Rapp giving his summation of the government’s case against veteran newspaperman and onetime BP co-owner Michael Lacey and his four co-defendants: two ex-employees of the company (Joye Vaught and Andrew Padilla) and two onetime execs (Jed Brunst and Scott Spear).
The ghost haunting the courtroom is that of the late Jim Larkin, Lacey’s longtime business partner and former publisher of Village Voice Media (VVM), a national 17-paper chain of alt-weeklies. Backpage.com (BP), a classified listing site, was once part of VVM, a way to compete with Craigslist.org (CL) and recoup revenue lost to the internet.
BP operated legally from 2004 to 2018, when the feds seized and destroyed it, arresting Lacey, Larkin, and the others on scores of charges related to alleged violations of the U.S. Travel Act, which makes it illegal to use the internet with the intent to “facilitate” a “business enterprise” involving misdemeanor state prostitution offenses.
Supposedly, the feds took the site down because BP (as CL did till 2010) allowed users to post ads for legal adult services, such as escorts, massage, and dating. Actually, adult service providers are still on nearly every platform available, which is one reason that social media giants should be paying close attention to this case.
This is the first time a prosecution such as this has gone to trial. Lacey, Larkin, et al. refused to plead guilty to these insane charges, setting off a 6-year legal battle, which has nearly impoverished all involved and taken an immense psychological toll on the defendants — evidenced by Larkin’s suicide one week before the trial was scheduled to begin.
Truth is, sitting through Rapp’s summation would make anyone suicidal. In the view of Rapp and his fellow prosecutors, EVERYTHING Backpage did was intended to facilitate prostitution: content moderation, reciprocal link agreements, aggregation, lists of banned terms (as many as 20,000), restrictions on nudity and explicit content, cooperation with law enforcement, seeking advice from anti-trafficking NGOs, you name it.
These practices are hella common among interactive websites. Indeed, many are encouraged by federal law. So, if the owners and operators of Facebook, X, TikTok, etc., think moderation will save them from being indicted by the feds for criminal activities connected to the user-generated content on their sites, I’d like to interest them in some beachfront property in Barstow.
Nor will their size save them if they tick off the feds. Rapp estimated that BP was in 450 markets across the U.S., and at its height, was making more than $100M/year. Millions of people across the globe were using the site, much as people use CL to offer a variety of goods and services. This lawful speech has been suppressed, and as a 2021 GAO report demonstrated, law enforcement can no longer rescue endangered women and children and prosecute their traffickers because BP no longer exists as a resource.
Rapp repeated testimony by government songbird Carl Ferrer that BP answered 20K subpoenas from law enforcement over the life of the site — “most involving criminal cases,” Rapp said (duh). These LE “subpoenas show that BP was a prostitution site.”
What Rapp failed to mention is that BP answered those subpoenas within 24 hours (incredibly quick by comparison with other companies), and a former Commander with the Minneapolis PD recently testified in this trial that he could call Vaught or Padilla in the middle of the night with requests for info regarding “exigent circumstances,” and they would answer the phone and get him what he needed.
Crikey, in 2011, FBI director Robert Mueller gave a commendation to BP for its “outstanding cooperation” with an investigation of “great importance.” Ferrer admitted on cross-examination that he kept the certificate in a place of pride on his desk.
Rapp claimed the moderation of content on BP — like, disallowing nudity and even coded offers of sex for money — was meant to “scrub” the site of indices of illegality. He alleged that terms like incall/outcall, escorts, roses, and GFE (girlfriend experience) in the ads equated to prostitution.
But incall/outcall are common terms in the massage industry and need not indicate a sex act for money. Don’t believe me? Check out Craigslist’s “health and wellness” section. Incall/outcall simply indicates that the client is going to the provider or the provider is going to the client. GFE? As I’ve said before, if you’ve had a girlfriend, you’ve had a “girlfriend experience,” and it does not guarantee sexual congress by any means. (Though we all live in hope.)
Roses? Even if you concede that “rose” means “dollar” in this context, a masseuse can legally charge “roses,” as can a stripper or sex performer as long as the line isn’t crossed. Even a term like PSE (pornstar experience) doesn’t mean you will get the PSE. Terms like that simply titillate, like a tongue or lipstick-kiss emoji. It’s not illegal in and of itself or necessarily indicative of sex for money.
Rapp employed a PowerPoint, showing a fake ad posted by CNN’s Amber Lyon in a news special. Lyon’s ad read “New Booty in Town: My name is Winter and I would like to meet new people.” It gave her age as 28 and used what Lyon said was a photo of herself in a bikini when she was 14. Her head was cropped out of the photo. There’s no sex-for-money language.
In a video clip, Lyon says she immediately began getting phone calls from men as soon as she posted the ad. Do you think Rapp has ever checked out a dating app? This same language and photo on a dating app or section would get a ton of responses from males of the species as well, because, you know, heterosexual men like women. Do I need to explain the birds and the bees to Rapp? You’d think his mamma would’ve done that by now.
What about links to and from The Erotic Review (TER)? Rapp pointed out that BP was getting loads of traffic from TER, even paying TER money for the links at one time. Though, by 2011, this relationship ended, the acronym was banned, and all that was allowed were numbers that someone could potentially Google to find reviews. So what? There’s nothing illegal about this.
Rapp called TER a “prostitution review site” and showed the jury a TER review wherein an anonymous male describes an encounter with a sex provider written in language reminiscent of Fanny Hill: Memoirs of a Woman of Pleasure. How do we know if this review is fiction like Fanny Hill? We don’t. Dudes like to brag, and sometimes lie, about their sexual escapades.
As defense expert witness Dr. Kimberly Mehlman-Orozco testified on Wed., the review or the Backpage ad linked to it could have been posted by law enforcement (one cop testifying for the government said he’d done this), a researcher, an anti-trafficking NGO, the sex worker herself (to drum up biz), or it could be complete fantasy, akin to the anonymous letters you’d read in Penthouse Forum back in the day.
It does not require a lot of imagination to see how dangerous this all is and how it could be applied to ordinary communications. For example, if a friend tells me he’s horny and I send him a link to TER, have I used the internet to facilitate prostitution? To the mind of a prudish prosecutor, the answer is apparently, yes.
On the topic of age verification, Rapp claimed that BP never did it because it was too expensive, but that’s not what Ferrer testified to. He said BP did try out an age-verification software called Aristotle, but that it was “clunky,” and they eventually decided not to use it. (Aristotle is still around, btw.)
Mike Masnick at Techdirt.com has written innumerable posts about why online age-verification systems are a “privacy and security nightmare,” but this aside, the U.S. Congress has not passed a general age-verification requirement for the internet — not even for porn sites. Maybe it will someday. Lord knows a passel of self-serving politicians wants to censor the internet in this fashion. But as is, there’s no such requirement.
Rapp ridiculed the fact that BP required users to acknowledge they are 18 or above before they are allowed to use the site, but this is a common screening procedure used by many sites, even sites advertising liquor — because age verification has all the issues that Masnick describes. I could go on and on. And I will, in future posts here and on frontpageconfidential.com, as time allows.
Suffice it to say that federal prosecutors make the most mundane and pedestrian of acts sound like the 9/11 terrorist attacks. And yet, the cops who have testified in these proceedings have admitted under oath that they could not make a prostitution bust based on the content of an escort ad on BP. So now we’re going to hold private businesses to a higher standard than the po-lice? Will all of this prosecutorial misdirection, prevarication, and hyperbole succeed? We shall soon find out.
Court is back at 8:45 am (not 9 am as I stated earlier) on Friday, Oct. 27, runs till 12:30 pm, then breaks till Tuesday of next week. Rapp isn’t finished, there are five defense attorneys who must give summations, and then, the govt. will give a rebuttal. So it’s likely the case will go to the jury next week. The jurors are hard to read, though mostly attentive during Rapp’s pompadoured performance.
Oh, almost forgot, the defense renewed its Rule 29 motion to acquit, and Humetewa continued to reserve ruling on the matter. Which is allowed, though you’d think she’d be inclined to let the little fish (Padilla and Vaugt) go. It would be an act of judicial humanity. I would like to believe that it’s still a possibility, for their sake.