The U.S. Department of Justice insists on one standard of guilt in its defense of FOSTA, while demanding an entirely different one in the prosecution of Lacey and Larkin under the Travel Act.
The U.S. Department of Justice’s duplicity knows no bounds when it comes to the prosecution of veteran newspapermen Michael Lacey and Jim Larkin under the U.S. Travel Act, a Kennedy-era law intended to target organized crime.
Case in point: the government’s two-faced defense of the Fight Online Sex Trafficking Act (FOSTA) from a Constitutional challenge by a coalition headed by the Woodhull Freedom Foundation, a nonprofit organization that advocates for freedom of sexual expression.
Before a three-judge panel of the D.C. Court of Appeals on January 11, the government argued that FOSTA and the Travel Act are effectively the same, with both laws using a high standard of criminal intent that, in the government’s view, does not fall afoul of the First Amendment.
But in Arizona’s U.S. District Court — where the prosecution of Lacey, Larkin and four others on up to 100 counts related to the facilitation of misdemeanor state prostitution crimes under the Travel Act is in its fifth year — the government insists on a far lower standard of criminal intent, one that would include the ‘generalized knowledge’ of wrongdoing by users of the website Backpage.com, which Lacey and Larkin once owned.
So, while the government tells the court in D.C. that both FOSTA and the Travel Act seek to punish the “aiding and abetting” of prostitution, in Arizona, government attorneys object to the Lacey/Larkin defense team’s insistence on a standard that parallels the definition of “aiding and abetting.”
The feds want to hold Lacey, Larkin, et al. vicariously liable for the criminal acts of others, which the government alleges are tied to advertising posted to Backpage by persons unknown to the defendants. As a means to this end, the DOJ is using the Travel Act to attack speech that is presumptively protected by the First Amendment.
“Everything that’s prosecutable under [FOSTA] was already prosecutable under the Travel Act.” — DOJ attorney Joseph Busa
Meanwhile, the DOJ plays a different game in D.C., telling an appellate court that FOSTA cannot be used against protected speech because FOSTA is just like the Travel Act, which requires a high level of proof to show that someone is an accomplice and therefore “aided and abetted” (i.e., furthered the commission) of a crime.
Why is this significant?
Because even if, as POLITICO surmised in a recent article on the oral arguments in Woodhull v. USA, the appeals court seems “poised to void part of FOSTA,” the government can still use the Travel Act to go after disfavored speech.
Making it doubly important that both Lacey and Larkin and the Woodhull litigants prevail.
Congress passed FOSTA in 2018 with the express intent to eradicate Backpage, which had been demonized as “the definition of evil” by moronic bluenoses like Senator Claire McCaskill of Missouri. She and other sponsors of the measure scoffed at the notion that it might be unconstitutional, with bad actors like U.S. House Judiciary Committee Chairman Bob Goodlatte declaring that, come hell or high water, “Backpage will be held accountable.”
In reality, Backpage was simply a classified listings site, a knockoff of Craigslist, where users could post advertisements for a vast array of goods and services, including, apartments, roommates, cars, flea markets, and jobs — in addition to adult-themed services, like dating, massage, escorts, stripping, etc.
Self-serving politicos and powerful nonprofits took offense to the adult-themed listings on the site, though federal and state courts consistently held that Backpage’s ads were protected both by the First Amendment and Section 230, a federal law that generally grants immunity to websites for content posted by users.
Backpage’s enemies accused it of facilitating prostitution, which they conflated with sex trafficking, a heinous crime involving either children, or adults induced into the sex trade through force, fraud or coercion. Actually, Backpage cooperated extensively with law enforcement to rescue endangered women and minors, earning the site praise from law enforcement, including the FBI.
“Laws regulating speech must be drafted with narrow specificity . . . Instead, the government treats FOSTA as a garden-variety aiding and abetting law.” — Woodhull attorney Robert Corn-Revere
After Craigslist nominally dumped its “adult” listings in 2010 to comply with the cavils of critics, Backpage became the new bête noire of self-appointed censors. The smearing of Backpage greased the skids for the passage of FOSTA, but as the law’s opponents now know, the big lie was that the government needed FOSTA to take down Backpage.
On April 6, 2018, just days before FOSTA was signed into law, the feds seized Backpage and removed it from the internet. Lacey and Larkin’s homes were raided by the FBI, and they were arrested. Their assets were seized as were the bank accounts of some of their attorneys. And they were only allowed to bail out on bonds of $1 million apiece.
The feds did not (and could not at that time) charge them under FOSTA.
Instead, the Justice Department utilized the U.S. Travel Act, which makes it illegal to use “the mail or any facility in interstate or foreign commerce, with intent to . . . promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,” which is defined as “any business enterprise” involving gambling, drugs, illegal liquor or “prostitution offenses in violation of the laws of the state in which they are committed.”
And yet, during the January 11 oral arguments in D.C., DOJ mouthpiece Joe Busa conceded what anyone who’s followed FOSTA already knows: the government didn’t need FOSTA to go after Backpage.
“Everything that’s prosecutable under [FOSTA] was already prosecutable under the Travel Act,” Busa told the jurists.
And in the government’s brief in Woodhull, the DOJ states that before FOSTA’s passage, the federal government “could also already prosecute anyone” who used the internet to facilitate prostitution “in violation of the Travel Act.”
Which begs the question of why Congress passed FOSTA to begin with, if taking down Backpage was the real goal.
The government’s brief in Woodhull falsely uses Backpage as an example of a website that ‘aids and abets’ criminal transactions. But in Arizona, the DOJ has resisted that standard, knowing that Backpage’s former owners and operators cannot be convicted with it.
FOSTA contains similar language to the Travel Act, making it illegal to own, manage, or operate an interactive computer service — or conspire or attempt to do so — “with the intent to promote or facilitate the prostitution of another person.”
During oral arguments, Woodhull’s counsel, Robert Corn-Revere, maintained that FOSTA was impermissibly vague, violated the First Amendment and had resulted in a widespread chilling of speech online.
By aiming at those who manage or own an “interactive computer service,” FOSTA threatened Corn-Revere’s clients, who include, in addition to Woodhull: a licensed massage therapist; a sex-worker-rights website; the group Human Rights Watch, which advocates for the decriminalization of prostitution; and the Internet Archive, which contains historical website data, including content related to prostitution.
Corn-Revere told the appellate panel that his clients, and many others, have reason to be afraid that the government could use FOSTA to come after them.
“Courts don’t uphold laws because the government promised to apply them responsibly,” Corn-Revere said.
He added: “Laws regulating speech must be drafted with narrow specificity . . . Instead, the government treats FOSTA as a garden-variety aiding and abetting law.”
Pig in a Poke
Indeed, the DOJ’s Busa spent much of his time before the appellate court trying to sell the judges on the proposition that the words “promote or facilitate” in FOSTA meant the same thing as “aid and abet,” and therefore, would not intrude upon protected speech.
FOSTA simply “prohibits the aiding and abetting the transactional crime of prostitution,” Busa told the court. And since “speech in the aid of a crime is categorically exempted” from the First Amendment’s protection, he argued, there were no constitutional problems with the law.
But Appeals Court Judges Harry T. Edwards and Patricia A. Millett took a buzzsaw to Busa’s argument, leaving it in tatters. Significantly, both Edwards and Millett seemed to agree that the verb “promote” in FOSTA could include a website advocating for the decriminalization of prostitution.
Edwards told Busa, “This doesn’t look like anything that I understand to be an aiding and abetting law.”
Judge Millett then delivered a roundhouse knockout by using the statute’s language but replacing the phrase “interactive computer service” with the word “library.”
Millett asked Busa about a hypothetical law making it “illegal to own, manage or operate a library with the intent to promote the prostitution of another person.”
In this case, the “crime,” she pointed out, was “owning, managing or operating a library with really bad intent.”
Busa admitted it was not a question he had considered before. When Millett asked him if it was “worrisome,” Busa conceded that it was “confusing.”
To which, Edwards shot back,
Why is it confusing? I don’t know why you wouldn’t have thought about it . . . These are the kinds of questions in this First Amendment arena. You came in very confidently saying this [law is only about ‘aid and abet’]. Well, you might assume a judge would push back with exactly the kind of question my colleague is raising, and I would’ve supposed that you would have had an answer for it.
One can only imagine Edwards’ anger if he knew that the government was taking a contrary tack in Arizona in relation to the Travel Act, which Busa was arguing was practically the same as FOSTA, and which contained similar language, specifically the terms “promote” and “facilitate.”
The government’s brief in Woodhull has the temerity to use Backpage as an example of a website that “aids and abets” criminal transactions.
But before the federal court in Arizona, the DOJ resists that standard of proof, knowing that Backpage’s former owners and operators cannot be convicted with it.
Rubber Meets Road
In the Arizona District Court, federal prosecutors interpret the words “promote” and “facilitate” far differently than do their colleagues in D.C.
Prior to the September 2021 trial of Lacey, Larkin, et al., both the defense and the prosecution submitted proposed jury instructions, with defense attorneys arguing that generalized knowledge of others’ wrongdoing was not a high enough standard of proof.
Lacey/Larkin’s defense attorneys wrote:
[T]o satisfy the specific intent requirements of the Travel Act, the government must prove beyond a reasonable doubt, for each Count, that each defendant in some significant manner associated himself or herself with a particular business enterprise associated with the ad charged in that Count with the intent to promote, or facilitate the promotion of, the prostitution offenses committed by that business enterprise.
Notably, this wording parallels the Ninth Circuit’s model instructions for aiding and abetting.
But the government objected, writing in response that “it would make no sense to require that the United States prove defendants did or could have directly committed the underlying state law offenses,” adding, “‘Promotion’ or ‘facilitation,’ not commission, is all that is required.”
This is a far cry from the “aiding and abetting” definition that the government argues “promoting or facilitating” should have in the D.C. appellate court.
Unfortunately, the trial judge never got to rule on the issue.
It’s hard to believe that government attorney Busa would have been unfamiliar with the stance of his colleagues in Arizona.
The government’s appellate brief in Woodhull mentions Backpage 34 times, repeatedly accusing the site of facilitating sex trafficking and child sex trafficking, though Lacey, Larkin and the rest are not charged with anything to do with sex trafficking or child sex trafficking. Nor could they be.
In fact, these identical smear tactics led to the implosion of the government’s case in the 2021 Lacey/Larkin trial. There, prosecutors repeatedly mentioned and elicited testimony regarding unrelated crimes, such as sex trafficking, child sex trafficking and even rape.
The result was a mistrial, just eight days into proceedings that were anticipated to last at least three months.
A new trial is scheduled for June 20, when the same issues will be in play.
Why should you care about how broadly the government uses the Travel Act to hold a website owner vicariously liable for content produced and posted by others?
Because such abuses have a way of metastasizing.
It wasn’t too long ago that the U.S. Drug Enforcement Administration assumed that all sellers of hydroponics supplies were “aiding and abetting” illegal marijuana grows, arresting and charging people based on that assumption, ruining hundreds of lives in the process.
At the very least, the DOJ should be held to the same aiding-and-abetting standard in Arizona that it admitted in D.C. should apply to the Travel Act.
A little consistency shouldn’t be too difficult for the most powerful government on the face of the planet.
Why, it might even dovetail with the ideal of “justice.”