During a two-hour pretrial hearing in downtown Phoenix on Monday, U.S. District Court Judge Susan M. Brnovich swatted away prosecutors’ efforts to sanction the defense team over allegations that ex-Backpage owners Michael Lacey and Jim Larkin disclosed sensitive  government documents to a correspondent for WIRED magazine.

WIRED reporter Christine Biederman interviewed the veteran newspapermen and former alt-weekly titans for a recent cover story, in which she took a critical look at the government’s case against them. Currently, the two men face 100 counts of facilitating prostitution, money laundering and conspiracy in relation to adult ads posted by third parties to the now-defunct online listings website, Backpage.com.

Prosecutors claimed Lacey and Larkin leaked two internal U.S. Department of Justice memos to Biederman, who referenced the memos in the WIRED piece without revealing a source.

The documents apparently contain exculpatory information and throw water on the government’s theory of the case. Government attorneys mistakenly released the memos to the defense as part of the discovery process sometime in 2018.

In January 2019, at the behest of the prosecution, a former judge in the case issued a sealed order clawing back the documents and directing that any copies possessed by the defense be destroyed.

Biederman’s piece quotes from the documents, using comments from Ernie Allen, former president and CEO of the National Center for Missing and Exploited Children (NCMEC) that are purportedly from the memos. Though NCMEC would eventually become Lacey and Larkin’s nemesis, at one point Backpage and NCMEC joined forces to combat the trafficking of children for commercial sex.

Biederman writes:

“According to a Justice Department memo from 2012, ‘unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations.’ A later memo noted that `even Ernie Allen believed that Backpage was genuinely trying to rid its site of juvenile sex trafficking.'”

Biederman has not yet responded to a request from Front Page Confidential for comment.

Rapp Gets Served

In his remarks to the judge, Lacey’s attorney Paul Cambria characterized the memos as being by written by DOJ attorneys, who “didn’t think they had a case.” He noted the memos were six or seven years old, and that the prosecution had offered no evidence to back up its allegation that Lacey and Larkin turned the documents over to Biederman.

Cambria said the government had unilaterally decided not to comply with an order from Brnovich directing the government to release so called “Jencks Act material” — statements and other documents related to the prosecution’s key witness, Carl Ferrer, Backpage’s former CEO, who has copped to a guilty plea on one federal count of conspiracy (as well as a couple of state charges in Texas and California) in exchange for his cooperation with the government.

Responding to Cambria, Assistant U.S. Attorney Kevin Rapp defended the government’s position, complaining to Brnovich that, “We feel like we can’t trust the defense.” Rapp suggested that the prosecution could have moved to revoke Lacey and Larkin’s bail (they’re out on bonds of $1 million apiece), but, in an act of alleged generosity, decided against it.

He requested that the court order a sworn declaration from the defense that the memos had been destroyed. Rapp also requested that the Jencks material be protected, suggesting that if it got out to the public, it could be used to intimidate Ferrer somehow.

Brnovich denied Rapp’s motion, explaining that the memos were “old” and had “clearly been distributed to many people … other people that the government was working with.” The government’s allegation that the defense had passed off the documents to Biederman was mere “speculation,” said the judge.

(Note: The next day, Brnovich issued an order outlining some restrictions on the release of the Jencks material to the defense.)

The irony supernova here is that, in what should be regarded as the most important First Amendment case in the nation, the federal government is suppressing two DOJ memos that appear to identify the weaknesses of its case, while ruthlessly attempting to put Lacey and Larkin in prison for the rest of their lives.

“I thought the prosecution was way out of bounds,” Lacey told Front Page Confidential after Brnovich’s ruling. “And I’m relieved to see the judge wasn’t playing along.”

Corn-Revere Schools Kozinets

Following a brief recess, court reconvened for oral arguments on a defense motion to dismiss the feds’ indictment, filed earlier this year. It argues that the government’s indictment is impermissible under First Amendment case law.

Prosecutors contend that Lacey and Larkin possessed generalized knowledge that prostitution was occurring on Backpage, and that’s enough to prosecute them. Yet, the online listings Goliath literally played host to millions of ads for completely legal services — from massages and escorts to puppy sales and rooms for rent — before the government seized it on April 6, 2018.

The defense’s motion to dismiss argues that the First Amendment requires that a stricter standard be applied when speech is involved. The motion garnered amicus briefs from various civil liberties organizations, such as the Cato Institute, the Reason Foundation, the DKT Liberty Project and the ACLU.

First Amendment attorney Robert Corn-Revere, speaking on behalf of the motion for Lacey and Larkin, told the court that the indictment “does not meet the [First Amendment] standard for illegal activity.” In fact, the prosecution does not claim that Lacey and Larkin were aware of, or ever saw, any of the 50 ads listed in the complaint.

Corn-Revere said First Amendment precedent requires three elements when deciding if speech is unprotected: a specific instance of speech must be involved; its sole purpose must be to further the crime in question; and, there must be “active participation in the crime” by the speaker or publisher.

Under the First Amendment and the U.S. Travel Act, which prosecutors are using to hold Lacey and Larkin accountable for adult ads posted by third parties on the site, the government must demonstrate “specific intent” to further a crime, Corn-Revere explained, involving “specific knowledge of a specific act.”

Corn-Revere said his clients’ intent was to “sell ads,” not to further criminal acts. But the government equated illegality to “anything to do with adult ads,” and that is not the high bar demanded by First Amendment jurisprudence.

Kozinets’ Lame Logic

Assistant U.S. Attorney Peter Kozinets delivered the government’s rebuttal, which boiled down to a blanket assertion that all of the adult ads on the site were for prostitution.

Commercial sex is illegal in the U.S., save for parts of Nevada, Kozinets noted. And since it was “black letter law” that the First Amendment does not protect speech furthering illegal activity, the First Amendment does not shield Backpage, he reasoned.

Kozinets called Backpage a “criminal enterprise” that was “affirmatively selling prostitution ads.” He claimed Backpage’s moderation practices removed certain taboo words from the ads, then published them anyway.

But Biederman reports that Backpage adopted such practices at the behest of U.S. anti-trafficking organizations, such as NCMEC, which is funded largely by the federal government.

As NCMEC’s one-time CEO pointed out in the aforementioned memos, Backpage cooperated extensively with law enforcement investigations. Now, in an Orwellian twist, the government is using that cooperation in its indictment as evidence the defendants were aware of illegal activity on the site.

Shortly after Kozinets spoke, Brnovich recessed, taking the matter under advisement. But there’s a Grand Canyon-sized hole in Kozinets’ logic that should be addressed.

That is, the government does not get to make the assumption that all of Backpage’s adult listings were for criminal acts. Think about it, if that were true, cops could have arrested and charged thousands, perhaps millions of people with crimes based simply on police interpretations of the vague verbiage of adult ads.

Of course, police need more than just vague language. They require, at least hypothetically, the elements of a crime.

Prosecutors allege that they can link the 50 adult ads mentioned in its indictment to random illegal acts by others that Lacey and Larkin had nothing to do with. Of course, the prosecution can only make these connections after the fact. Police cannot collar people based on future crimes a la Minority Report. At least not yet.

Dominatrixes and the Posner Rule

There are other complicating factors.  Adult ads naturally blur reality with elements of fantasy, and they may involve perfectly legal activities.

Seventh Circuit Court of Appeals Judge Richard A. Posner addressed this issue in a 2015 opinion concerning claims against Backpage, writing, “[N]ot all advertisements for sex are advertisements for illegal sex.”

Ruling on behalf of Backpage against Cook County, Illinois Sheriff Thomas Dart, Posner observed that adult services such as fetishism, phone sex and striptease are not in and of themselves illegal. Same goes for dominatrixes, generally speaking.

“It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution,” Posner wrote.

Nor would, presumably, ads for such services.

But as Biederman explained in her WIRED piece, prosecutors are not banking on the law to convict Lacey and Larkin, if the case goes to trial May 5, 2020, as scheduled.

Instead, prosecutors will utilize what Biederman, a former Assistant U.S. Attorney, calls “reptile theory” — basically, the argument that Lacey and Larkin are so contemptible they must be convicted for the good of society.

That’s not supposed to be the way the U.S. justice system works in the 21st century, but neither should the government be able to declare a website’s content illegal, seize and remove it from the internet and jail its publishers minus intense scrutiny from the courts.

For more on U.S. v. Lacey and Larkin, please read:
New “Evidence” in Backpage Case Reveals Government’s Flawed Prosecution
and
Four Civil Liberties Organizations File Amicus Briefs in Support of Backpage Defendants’ Motion to Dismiss
and
Ninth Circuit Hands Lacey and Larkin a Partial Win in Latest Battle over Seized Assets