With jury selection beginning Aug. 29 in Phoenix's federal courthouse, journalists demand an end to the second Backpage trial involving award-winning journalist Michael Lacey and four others.
We are journalists, editors, artists, and public servants who support veteran newspaperman Michael Lacey in his First Amendment fight with the federal government.
On July 31, 2023, Lacey’s longtime business partner, veteran newspaperman James Larkin, died tragically one week before a second federal trial for himself, Lacey, and four others was to begin.
Larkin was a fighter, a rebel. He created a rabble-rousing underground newspaper at his high school; traveled to Mexico City in 1968, witnessing anti-government riots firsthand; hitchhiked across the United States as a young man; and finally, joined forces with Lacey to make their first paper, Phoenix New Times, into a journalistic juggernaut.
Recently, Larkin was under incredible pressure due to the government’s asset seizures and looking at the possibility of dying in prison if convicted.
Like Lacey, Larkin faced vague allegations of “facilitating” prostitution via legal adult ads posted by third parties to Backpage.com, a Craigslist-like classified listings site that Lacey co-owned with Larkin from 2004 to 2015.
In Sept. 2021, their first federal trial ended in a mistrial after just three days of testimony due to prosecutorial misconduct.
Their second trial was scheduled to begin Aug. 8, five-and-a-half years after their 2018 arrests by the FBI.
Following Larkin’s death, Judge Diane Humetewa formally dismissed the indictment against him, rescheduling the start of the new trial for Aug. 29.
Lacey, who just turned 75, could spend the remainder of his life in prison if found guilty of any of the 100 charges stacked against him.
As we explain below, we believe Lacey is the target of a vindictive prosecution, resulting from his 40-plus years as a muckraking journalist. He and Larkin helmed what eventually became Village Voice Media (VVM), a 17-paper chain of free alternative weeklies that included the Village Voice and LA Weekly.
A number of us worked for Lacey and Larkin – VVM’s executive editor and publisher, respectively – at one or more of their papers.
On numerous occasions, such as when they were falsely arrested in 2007 by Arizona’s racist sheriff, Joe Arpaio, we witnessed their devotion to the cause of journalism, one that garnered their papers more than 3,800 writing awards, including a Pulitzer.
Lacey and others founded the Phoenix New Times in 1970, in protest over the Vietnam War and the Kent State Massacre. Lacey’s papers exposed corruption, challenged police abuses of power, and championed the rights of the downtrodden in the best tradition of the newspaper credo, “comfort the afflicted and afflict the comfortable.”
Lacey mentored hundreds of journalists. His papers invested heavily in long-form investigative journalism.
This journalism was financed through traditional and non-traditional forms of advertising, including classified ads for everything from car sales and housing to legal adult listings like escorts, personals, massage, and striptease.
Nearly all alternative weeklies did likewise. Advertising for adult-themed services also appeared in phone books as well as dailies such as the Arizona Republic. At the time, these ads were largely uncontroversial.
Such ads are at the heart of the allegations against Lacey. The government is using a novel theory of prosecution, one never tested before in a criminal trial. It seeks to hold Lacey vicariously liable for the illegal acts of others – acts allegedly connected to classified ads on Backpage, a Craigslist competitor, where users could post the same ads that once appeared in free weeklies — including adult-themed ads.
Previously, federal and state courts found Backpage to be protected both by the First Amendment and Section 230 of the Communications Decency Act. Three state laws targeting Backpage were overturned as a result.
Even if you don’t approve of Michael Lacey or Backpage or adult ads, all speech is presumptively protected by the First Amendment, and all citizens have a right to a fair trial.
At the abortive 2021 trial, a key prosecution witness, Brian Fichtner, a special supervisory agent with the California Attorney General’s Office, admitted under cross-examination that the escort ads he reviewed on Backpage were, on their face, legal.
Fichtner testified that he could not make an arrest for prostitution based on the ads alone, nor did he know of anyone who had. He conceded that even sex workers have First Amendment rights.
The trial judge at the time, Judge Susan Brnovich, called a mistrial after the prosecution, in violation of her orders, poisoned the jury by repeatedly mentioning and eliciting testimony concerning heinous crimes that Lacey and his co-defendants are not charged with.
Before Larkin’s death, the U.S. Attorney’s Office in Arizona attempted to hogtie the defense through a series of pretrial motions, the most outlandish of which would have barred the mere mention of the First Amendment and free speech before a jury.
The government did not get everything it wanted. For instance, Humetewa ruled that the legality of the ads on Backpage is at the heart of the case. The burden is on the government to prove the ads were not legal.
Still, the government’s scorched-earth tactics should offend everyone who believes in due process and the First Amendment. Overall, the prosecution has engaged in a win-at-all-costs strategy.
This includes:
- Destruction of evidence during the 2018 seizure and take-down of the website;
- Blocking exculpatory evidence that undercuts the government’s theory of this case;
- The seizure of Lacey and Larkin’s assets, including earnings preceding the existence of Backpage;
- The unprecedented seizure of more than $10 million from defense lawyers’ trust accounts set aside for legal fees.
The last of these forced several attorneys to withdraw from the case, ultimately leaving three of Lacey’s co-defendants with court-appointed counsel.
Even if you don’t approve of Michael Lacey or Backpage or adult ads, all speech is presumptively protected by the First Amendment, and all citizens have a right to a fair trial.
We believe Lacey is being made an example of because his journalism angered powerful individuals and organizations.
He and Larkin refused to kowtow to the dictates of politicians and stood firm on the First Amendment, prompting government retaliation.
We call for this travesty to end.
Otherwise, a dangerous precedent will be set, whereby the U.S. government can prosecute people for third-party speech simply because the authorities find that speech objectionable.
That would be un-American and unconscionable, and we oppose it as a violation of the tenets that make the U.S. Constitution’s guarantee of free expression the envy of the world.
Susan Goldsmith, investigative journalist, documentarian
Bruce Rushton, reporter
Margaret Downing, editor-in-chief, Houston Press
Tom Finkel, editor-in-chief, Miami New Times
Julie Lyons, former editor-in-chief, Dallas Observer
Amy Alkon, columnist, author, and former contributor to New Times L.A.
Dr. Lois Lee, Founder & President, Children of the Night
Francine Hardaway, writer, former Phoenix New Times film critic
Susan Buchanan, investigative journalist, documentarian
Jimmy Magahern, field reporter, The Washington Post
Pat Cantelme, Sr., retired Phoenix Fire Captain; former President of the United Phoenix Fire Fighters’ Association Local 494
Brendan Joel Kelley, investigative journalist, documentarian
Baylee Suskin, professor, former editorial assistant, Phoenix New Times
Salvador Reza, community activist, Barrio Defense Committees
David Holthouse, investigative journalist, documentarian
Rick Barrs, former editor-in-chief, Phoenix New Times and New Times L.A.
Carlos Garcia, former Phoenix City Councilperson
Bill Jensen, investigative journalist, author
Peter Storch, former art director, Phoenix New Times
Gerald Stricklin, early New Times contributor
Richard Gaxiola, attorney at law
Tom Walsh, investigative journalist, former editor-in-chief, San Francisco Weekly
David Hudnall, former editor-in-chief, Phoenix New Times
John Dougherty, investigative journalist, former U.S. Senate Candidate
Barry Friedman, comedy writer, author, former Phoenix New Times music columnist
Conni Colella-Ersland, former art director, Phoenix New Times
Steve Jansen, investigative journalist, arts writer, editor
Pete Kotz, former national editor at Village Voice Media
David Morgan, publisher, Cochise County Record
Beau Hodai, investigative journalist, Cochise Regional News
Gillian Dundas, former art director, Phoenix New Times
Chuck Strouse, former editor-in-chief, Miami New Times
Martin Cizmar, investigative journalist, editor
Mike Seely, former editor-in-chief, Seattle Weekly
Dan Kapelovitz, attorney at law, Radical Law Center
Thomas K. Yoder, former co-owner, Chicago Reader
Earl Doliber, early New Times supporter
Michele Lefkowitz, investigator
Sharon Zapata, civil rights activist
Roberto Reveles, civil rights activist
James King, investigative journalist
Stephen Lemons, writer, reporter, Front Page Confidential
