During the final pre-trial hearing in the Lacey/Larkin case, Lacey's attorney Paul Cambria landed some George Foreman-style blows on behalf of the First Amendment.
On Friday in federal court in Phoenix, defense attorney Paul Cambria came ready to rumble.
It was the last pre-trial conference before the U.S. Government’s railroading of storied newspapermen Michael Lacey and Jim Larkin picks up steam on day one of trial, Sep. 1. That’s more than three years after they were arrested for formerly owning a 100% legal classified ad site.
The government wants to convict the former alt-weekly titans for allegedly facilitating the criminal acts of third parties whom they literally have nothing to do with, acts allegedly connected to adult ads that ran on Backpage.com, which the two men once owned.
The 100 charges against Lacey and Larkin and their six co-defendants relate to allegations they facilitated prostitution in violation of the rarified language of the Travel Act.
Never mind that prostitution is usually a misdemeanor offense involving consenting adults, one most Americans believe should be decriminalized.
THE BRUISER FROM BUFFALO
Looking dapper in blue pinstripe, Cambria, who represents Lacey, lit up what had been a dour hearing with an impassioned speech discussing the defense’s proposed First Amendment instructions to the jury, both at the start of trial (preliminary) and before the jury deliberates (final).
“This is a speech case,” the Buffalo-based attorney told the court. “The government doesn’t want it to be, but it is.”
Prosecutors claim nearly all of the speech that took place on Backpage was illegal, but that’s not how the First Amendment works.
“All speech and press are presumptively protected under the First Amendment,” said Cambria.
This includes adult-oriented advertisements, like those that ran in certain sections and subsections of Backpage.
New to the Lacey/Larkin case? Check out Reason’s award-winning documentary, “The Rise and Fall of Backpage”
Only a few very narrow categories of speech are outside of the First Amendment. To lose that 1A shield, an advertisement must be illegal on its face, like explicit sex-for-money proposals, which were forbidden by Backpage’s terms of service.
All but one of the 50 adult-themed ads cited by the prosecution are vaguely worded and ambiguous. And they were posted to one of three categories: “dating,” “massage” or “escorts.”
Courts have ruled that such speech is protected by the First Amendment and by Section 230, the federal law that makes users responsible for the content they post, not the website they post on.
“All speech and press are presumptively protected under the First Amendment.” — defense attorney Paul Cambria
Offensive speech is not unlawful, Cambria said. Even speech that appears to be illegal is presumed legal. The jury needs to know this, he argued.
The defense suspects the prosecution misled the grand jury on this point. In fact, the government avoided defining prostitution in its pleadings, until recently, when they cited prostitution laws in 15 states where the ads ran.
Many of these laws are constitutionally dubious, Cambria observed.
Government attorney Peter Kozinets countered that a First Amendment instruction was “unnecessary” and “potentially confusing” to the jury. The court should wait until after the government presents its evidence. If it doesn’t prove its case, a First Amendment instruction will be unnecessary.
The federal cases Backpage won? They are not applicable here, claimed Kozinets, with a straight face.
Judge Susan Brnovich seemed to agree that some First Amendment instruction to the jury would be needed.
“Whether the ads are protected or not is a decision for the jury, so the jury has to know the law,” she said, taking the issue under advisement.
In a win for the defense, the judge said she would not read the government’s biased “statement of the case” to the jury, agreeing with the defense that it was improper for her to do so.
Much of the rest of the three-hour hearing dealt with procedural issues, COVID protocols and limited seating in the Phoenix courthouse’s special proceedings room. Due to social distancing, the public and press will likely have to watch, standing, from a gallery.
As far as prosecution during the pandemic, all attorneys, defendants and staff will have to get tests for COVID before trial, the judge ordered. One lawyer, who had been vaccinated, recently caught a breakout case and is still experiencing symptoms.
Brnovich said she was determined to have the case wrapped up by December, despite nearly 90 government witnesses, a raging Delta variant outbreak, and a massive list of prosecution exhibits.
One weird note: Rapp, ever the “cop,” proposed that the government take headshots of all witnesses, including defense witnesses, so the jury can remember what they look like when they deliberate.
Did this guy study law in the Soviet Union or what?
The defense objected. Joy Bertrand, who represents one of Lacey and Larkin’s co-defendants, pointed out that the defense’s witnesses would be intimidated, adding, “It just sounds, creepy.”
Brnovich said the prosecution does it in other cases, but allowed that it did sound “creepy” and vowed to rule on it later.
Here’s hoping Rapp won’t be scoring more mugshots for the government’s facial recognition software.