Veteran newspapermen Michael Lacey and Jim Larkin denounce a recent move by the U.S. Attorney’s Office for the District of Arizona to ban the First Amendment and free speech in their case.
Statement from Michael Lacey and Jim Larkin:
The U.S. Attorney’s Office (USAO) in Phoenix recently filed nine motions in our case aimed at denying us a fair trial, the most egregious of which asks federal Judge Diane Humetewa to prevent any mention of the First Amendment or free speech before the jury during our upcoming retrial on Aug. 8.
The USAO is apparently irony-deficient as well as tone-deaf. Reason magazine’s senior editor Elizabeth Nolan Brown recently wrote about this outrage that “the First Amendment is at the center of this case . . . The very crux of the matter is online content and speech.”
Indeed, the website we once owned, Backpage.com, was nothing but speech – advertisements for jobs, car sales and apartment rentals as well as for dating, escorts and massage. All of which are presumptively protected by the First Amendment.
It is the government’s burden to prove that any speech falls within the narrow confines of illegal speech. But that is a burden the government doesn’t wish to shoulder.
That’s not surprising given that one of the government’s chief witnesses at our first trial, a special supervisory agent with the California Attorney General’s Office, admitted on cross-examination that the ads themselves, both the wording and the images that accompanied them, were facially legal.
He could not make a prostitution bust based on these ads alone, he testified, nor did he know of anyone who had. He would literally have to be in the room with an escort and a client to determine if an illegal offer was taking place.
He also conceded that escorting is legal and regulated by states and municipalities, and he agreed that sex workers have First Amendment rights just like every other American.
The prosecution’s motions would prohibit this part of the agent’s testimony.
In addition to a ban on the First Amendment and free speech, the USAO wants the judge to prevent: any discussion concerning the legality of the ads; the fact that federal and state courts consistently upheld Backpage’s right to publish under the First Amendment and Section 230; and any discussion of Section 230, the federal law that generally holds websites immune for content posted by their readers.
Further, the government wishes to forbid our attorneys from questioning the legitimacy of this nearly six-year-long prosecution or from talking about any advice that our attorneys may have given us concerning the legality of the ads we hosted.
Finally, the USAO seeks to erase our humanity by preventing our attorneys from mentioning our 40-plus years as award-winning journalists and publishers of alternative weeklies. The USAO even wants to block our attorneys from pointing out to the jury that we have families and decades-long generational ties to the Valley’s social and business community.
In her stinging analysis of the prosecution’s latest move, Brown wrote that “the government seeks to prevent the Backpage defendants’ legal team from making basically any reasonable attempt to defend against the charges against them.”
The USAO’s effort is part of a long pattern of government overreach in this case.
In an effort to starve our defense, the government seized our assets in 2018, including personal assets and funds accumulated years ago that had nothing to do with Backpage. It also seized more than $10 million in lawyers’ trust accounts, forcing several attorneys to withdraw from the defense.
Additionally, the government seized and effectively destroyed the most valuable piece of exculpatory evidence in our case, the website itself, rendering the data on it useless.
Prosecutorial misconduct caused our first trial in Sept. 2021 to be declared a mistrial — after just three days of testimony. Government attorneys poisoned the jury by repeatedly mentioning and eliciting testimony – in violation of the judge’s orders — about heinous crimes that we have never been accused of and never could be accused of.
The government now wants to prohibit and sanitize any mention of that mistrial.
It’s clear to us, especially given these motions, that the government will likely commit the same misconduct in our upcoming trial, risking another mistrial in the process.
The government wants us to capitulate, but as newspapermen, we have fought all our lives for freedom of speech and the First Amendment. And with faith in our lawyers and a jury of our peers, we will continue that fight.
All we ask for is a fair one.
— Michael Lacey and Jim Larkin