The following contains the analysis and opinions of the author and no one else.

On Wednesday, in a brutal day for the First Amendment, a federal judge in Phoenix sentenced journalist Michael Lacey to 5 years in prison and imposed a $3 million fine for his co-ownership of a Craigslist-like, classified ad site, Backpage.com.

The sentence, imposed by U.S. District Court Judge Diane Humetewa, came more than nine months after a jury found Lacey, now 76, guilty of one count of international concealment money laundering for moving nearly $17 million to a European bank in January 2017.

As Lacey stood before her with his attorneys by his side, U.S. District Court Judge Diane Humetewa lectured the veteran newspaperman about his vocal defense of the site’s First Amendment right to publish adult advertising, telling him that he knew Backpage “published ads for illegal prostitution” but did nothing to take the site down.

Humetewa said Lacey had been “put on notice” by state Attorneys General and religious groups that, in their view, the adult-themed ads on Backpage actually were sex-for-money offers. She also said Lacey “wrote articles about Backpage” and “believed in legalized prostitution,” though she conceded that even some jurors at his trial had expressed the same opinion of sex work during voir dire.

The judge chastised Lacey for his “hellbent belief that what you were doing was not illegal.” And she cited evidence that minors had been advertised on the site, though Lacey was not charged or convicted of anything to do with underage sex trafficking.

“In the face of all this, you ‘held fast,'” Humetewa said, in a reference to the “Hold Fast” tattoo on Lacey’s knuckles, complaining he didn’t even “shut down Backpage for a week.”

The judge’s admonishments downplayed Lacey’s role as executive editor of Backpage’s parent company, a 17-newspaper chain known as Village Voice Media (VVM). At VVM, Lacey was in charge of the editorial side of the company, not the business side. Nor did Humetewa take into consideration that several federal and state courts found that Backpage had been operating legally and was protected both by the First Amendment and Section 230 of the Communications Decency Act.

Lacey’s lead attorney, Paul Cambria, argued that Lacey had moved the money at issue in accordance with federal law, notified the IRS of the transfer on a yearly basis and paid all appropriate taxes — acts that belie the accusation of concealment — but Humetewa said she was unconvinced.

“You made it very clear that you wanted to move assets offshore to protect them from government seizure,” she said. To find him guilty, she added, the jury must have determined that the funds were “illegal proceeds” derived from prostitution.

And yet, Lacey was not convicted of any underlying counts involving prostitution. Nor was he found guilty of conspiracy. Rather, following an 11-week trial in 2023, a jury was hung on 84 counts involving conspiracy, money laundering and violations of the U.S. Travel Act, a federal law that makes it illegal to use a means of interstate commerce to facilitate a business enterprise involved in breaking state laws against prostitution.

Following the trial, Humetewa acquitted Lacey of 50 of those 84 counts, leaving 34 outstanding. Prosecutors said they will await the result of the appeals process before retrying Lacey on the remaining counts.

Despite having previously admitted that there are “substantial issues” concerning the case to be decided by an appellate court, Humetewa denied a defense request for Lacey to remain out on bond, pending appeal.

She ordered Lacey to turn himself in to federal marshals in two weeks, meanwhile confining him to his home, where he must wear an ankle monitor at all times.

Humetewa’s sentence should send shivers down the spines of all owners and operators of interactive computer services, who risk being held accountable for the illegal acts of persons unknown to them, if the proprietors know those people misuse their sites in connection with a crime.

Two former executives of Village Voice Media, Scott Spear and Jed Brunst, fared much worse than Lacey. After dubious convictions last year on a host of federal charges, Spear and Brunst each were sentenced to 10 years imprisonment, and Brunst was fined $50,000 to boot. As both men are in their 70s, their sentences could equate to life sentences, ending with their deaths in prison.

Humetewa’s sentences and the verdicts secured by the government blow a Grand Canyon-sized hole in the First Amendment, which, as Cambria has eloquently stated on many occasions, presumptively protects all speech and communication until the government proves otherwise. Or at least, it should.

Larkin’s Ghost

In a statement released shortly before sentencing, Lacey lamented the untimely death of his co-defendant and longtime business partner, Jim Larkin, who took his own life just days before the 2023 trial was to begin, driven to despair by a ruthless prosecutorial vendetta and the seizure of nearly all of his assets. Lacey called Larkin’s suicide “the tragedy of this prosecution.”

Lacey added, “Larkin consulted with the nation’s finest First Amendment attorneys throughout the history of Backpage, and I believe he always followed the advice of the lawyers. That’s just who Jim was.” Lacey also noted that “law enforcement testified in court that they could not arrest anyone based upon the ads in Backpage.”

Concerning Spear and Brunst, Lacey wrote, “I have known fellow defendants Scott Spear and Jed Brunst for decades and know them to be both honest and honorable. The accusations against them are astonishing and flat wrong.”

Spear was an executive vice president. Brunst was a chief financial officer. Both men have led lives free of blemish, never straying from legal boundaries as they knew them. But with this case, the federal government is holding them to a higher standard than even the police.

As Lacey noted, at the 2023 trial and at the first, abortive 2021 trial, which ended in a mistrial due to egregious prosecutorial misconduct, law enforcement officers consistently testified that they could not make a prostitution arrest based on the vague language and risqué photographs in Backpage’s adult advertisements.

At the first trial, an investigator with the California Attorney General’s office conceded that the ads were legal on their face, that he had not made a prostitution bust based on such ads, and that he did not know of anyone who ever had made a prostitution bust based on a Backpage ad.

Moreover, it’s important to remember that Lacey, Brunst and Spear were convicted and sentenced based on just a handful of ads out of the millions that once ran on Backpage.

Prosecutors and police have the benefit of hindsight, linking ambiguous adult ads to criminal acts after the fact. Spear, Brunst and Lacey never saw these ads, and money-for-sex language was verboten on Backpage.

Perhaps Backpage was negligent for not hiring psychics.

Every attempt by Backpage to remain a good corporate citizen was turned on its head by the prosecution in this case. For instance, Backpage’s industry-standard Terms of Use, which prohibited ads for unlawful activities, graphic nudity, etc., were portrayed as tools to educate pimps on how to post illegal ads that weren’t obvious.  And prosecutors depicted the industry-standard practice of moderation as another attempt to hide illegality.

Backpage’s cooperation with law enforcement, its policy of responding to subpoenas within 24 hours, the training it offered police and the testimony its employees gave at state and federal trials to convict actual pimps and traffickers were all offered as proof that Backpage was aware of unlawful activities on its site, done to provide cover for Backpage’s supposed criminal enterprise.

Prosecutors were also playing with a seriously stacked deck. In 2018, the government seized the defendants’ assets before the indictment was made public, hamstringing the defense and forcing several lawyers to withdraw for lack of funds.  And in seizing Backpage, the FBI destroyed the website and a vast amount of exculpatory data with it.

At trial, the government successfully prevented the defense from arguing that the defendants lacked what attorneys call mens rea, or the intent to commit a crime.

Evidence that Backpage’s  attorneys advised the defendants that the site was operating within the law was excluded. Similarly, the defense could not mention Backpage’s previous wins in court, was largely precluded from mentioning Section 230, and was almost completely precluded from discussing the First Amendment implications of the case.

Notwithstanding these limitations on the defense, the government did not get everything it wanted. Of the six people who went to trial, two Backpage employees refused plea deals and were acquitted of all charges, a slap in the face for prosecutors who dragged two upstanding individuals through the mud without cause.

The government wanted Lacey’s head on a pike, but they failed to convict him of anything to do with prostitution. There’s also a good chance his conviction will not survive an appeal.

Leading up to the sentencing, the government asked the judge to sentence Lacey, Brunst and Spear each to 20 years in prison. Though harsh, the sentences Humetewa laid down did not comply with the government’s insanely bloodthirsty demands.

In court yesterday, prosecutors were plainly perturbed at not entirely getting their way. Prosecutor Austin Berry, who hails from Texas and specializes in child porn prosecutions, asked Humetewa to immediately remand the defendants into custody, warning her of the risk of “flight by suicide” and grotesquely invoking Larkin’s death.

It was an absurd ask, though par for the course for this unhinged prosecution. Humetewa instead gave the three men a fortnight to surrender.

Berry and his prosecutorial cohort Kevin Rapp, known for styling his hair à la Andrew Dice Clay, seemed seriously rattled by Lacey’s five-year-sentence, asking for a break in the proceedings to discuss the matter with the probation officer who’d recommended 20-years for Lacey and much more for the other two men.

After the break, Humetewa justified her decision, noting that Lacey had not been convicted of the Travel Act offenses or even of the charge of conspiring to violate the Travel Act.

The prosecutors looked pissed. Apparently, Larkin’s death and five years for Lacey were not retribution enough.

The government likely has pursued this case as a playbook for the possible prosecution of other social media entities. The presence of Assistant U.S. Attorneys from other jurisdictions watching the proceedings in court yesterday suggests that is so.

The message from the feds seems clear: Do what we say or get the Backpage treatment. And don’t think the First Amendment will protect you.

Even if the entire case is overturned on appeal, as it should be, that warning will ring loud and clear to website operators, who are now “on notice” that, no matter how much money they have, the government has the power to rip that all away and leave their lives and the lives of their loved ones in ruins.

Please also see:
Government Asks Judge to Sentence Journalist Michael Lacey to 20 Years Imprisonment
and
The Late Jim Larkin Looms Large in Reason’s New Documentary on Backpage.com