On Thursday in Phoenix, U.S. District Court Judge Diane Humetewa denied a defense motion asking her to dismiss the five-year-old criminal case against veteran newspapermen Michael Lacey and Jim Larkin. The ruling clears the path for an August 8 retrial of the two First Amendment stalwarts.

Lacey and Larkin’s attorneys filed the motion in late March. It accused the U.S. Department of Justice of talking out of both sides of its mouth, with the DOJ insisting on one interpretation of the U.S. Travel Act before the U.S. Court of Appeals for the D.C. Circuit, while arguing for a looser application of the same law in Phoenix against Lacey, Larkin and four co-defendants.

The government claims that through their former ownership of the Craigslist-like classified listings site, Backpage.com, Lacey and Larkin “facilitated” or “promoted” misdemeanor state prostitution offenses in violation of the Travel Act. According to the government’s logic, this is because the site allowed users to post facially lawful advertisements for things like escorts, dating and striptease along with millions of other ads for mundane goods and services such as used cars, apartments, puppy sales, etc.

(In addition to Travel Act violations — 50 in all — Lacey, Larkin, and the rest face one conspiracy charge, with four defendants facing up to 49 counts of related money laundering allegations.)

The defense argues that the words “facilitating” and “promoting” in the Travel Act should be interpreted narrowly, more akin to the standard of “aid and abet“: i.e., assisting or encouraging the commission of a crime.

Prosecutors in the case oppose this standard, claiming that “facilitate” and “promote” should be given their “ordinary meanings” and broadly construed to mean “make easy or less difficult.”  Significantly, a narrow interpretation would make it more difficult for the government to secure a conviction at trial.

However, in the Woodhull Freedom Foundation’s constitutional challenge to the Fight Online Sex Trafficking Act (FOSTA), the DOJ takes a different tack.

FOSTA makes it illegal to operate an interactive computer service “with the intent to promote or facilitate the prostitution of another person.” Woodhull is a non-profit group that advocates for freedom of sexual expression among consenting adults.

In its federal lawsuit, which is now awaiting a ruling from the D.C. appeals court, Woodhull maintains that FOSTA is unconstitutional because the terms “promote” and “facilitate”  in the law will be broadly interpreted, ensnaring and/or chilling protected speech.

In its brief to the appellate court in D.C., the government asserted that the terms “promote” or “facilitate” in the Travel Act have been interpreted as being “equivalent to ‘aid’ and ‘abet’” and that those terms have “settled legal meanings.” The government argued that “whatever meaning ‘promote’ or ‘facilitate’ might have in everyday speech, their meaning as terms of art in criminal statutes, invoking traditional principles of accomplice liability, is established.”

But Humetewa was unconvinced that this apparent contradiction offered grounds for dismissal. She noted in her ruling that, “The Travel Act does not contain the words ‘aid and abet.'” She further rejected the “defendants’ premise that the Travel Act offenses require the government” to allege aiding and abetting.

The judge quoted past rulings in the Lacey/Larkin case, stating that “previous statements by the government are not binding on this court, not relevant to this prosecution, and, in any case, not inconsistent with the government’s current theory regarding the Travel Act.” She also wrote that “the government’s representations” related to two different statutes.

She added:

The Court continues to agree with its past statements, and the fact that the Government has reiterated the same position in a recent oral argument does not present cause to reconsider its decision. As Defendants acknowledge, there has been no opinion from the D.C. Circuit Court to suggest that court agrees with the Government’s proposed interpretation of FOSTA and of course, this Court would not be bound by such a holding even if it had. 

Hell Come August

Humetewa found that the government’s superseding indictment was not deficient. Even if she were to assume “that the evidentiary burdens of an aiding and abetting offense govern” the Travel Act charges, the issue of whether the government “offered sufficient proof of the commission of the offense” is to be determined at trial, she wrote.

Defense questions about proposed jury instructions concerning these issues were “premature.” The court has ordered the parties “to submit their proposed jury instructions” and will “consider those arguments in due course.”

The upcoming August trial,  estimated to last up to three months, will be the second go-around for Lacey, Larkin and the rest. The first trial ended in a mistrial after just three days of testimony in September 2021 due to egregious prosecutorial misconduct.

Instead of sticking to the Travel Act charges, prosecutors mentioned or elicited testimony about inflammatory subjects such as rape, sex trafficking, and child sex trafficking — heinous crimes that Lacey, Larkin, etc. are not charged with, nor could they ever be.

This blatant bid to prejudice the jury backfired, with the trial judge, Susan Brnovich, ruling from the bench that she had given the prosecution some “leeway” in pleading its case, “Yet in the opening, and with every witness thereafter, it seems, the government has abused that leeway.”

Lacey and Larkin moved to block a retrial, arguing it would violate the Constitution’s prohibition on double jeopardy. Brnovich recused herself without explanation. Humetewa was chosen by lot as her replacement. Humetewa denied the motion. The defense appealed her decision to the Ninth Circuit Court of Appeals, but the appeal was unsuccessful.

The prosecution of Lacey and Larkin is now in its sixth year, with the DOJ wasting untold millions of dollars on this travesty.

And it’s ready to spend more on a retrial, tempting a second mistrial in the process.

At a hearing before Humetewa in March, prosecutor Kevin Rapp argued against a delay in proceedings so new defense attorneys could get up to speed.

They didn’t need the time, Rapp contended, because the prosecution’s case would be the same as during the first trial, though with around 58 government witnesses instead of 80 or so.

Spoken like a lifelong government employee with public money to burn.

Meanwhile, the defense has been impoverished by the government’s seizure of nearly all of Lacey and Larkin’s assets. The feds also seized attorney trust accounts set up to fund the defense, forcing some lawyers to abandon the case. Three defendants now have court-appointed attorneys, paid with taxpayer dollars.

Both in their 70s, Lacey and Larkin could spend the rest of their lives in prison if convicted on just a fraction of the 100 counts stacked against them.

Not only would a conviction be a miscarriage of justice, it would set a dangerous precedent for free speech on the internet and off, allowing the government to silence speech that a series of federal and state courts deemed protected by the First Amendment.

What happened to Backpage in 2018 with its seizure and destruction by the feds could happen tomorrow to TikTok, Signal, WhatsApp, or even Facebook.

And a conviction of Lacey and Larkin will further the chilling effect Backpage’s obliteration has had, serving as a warning to anyone who dares publish or host speech that the government dislikes.

Because as goes Backpage, so goes the internet.

Please also see:
Lacey Says Adios to ‘Cankle Jewelry’ after Change in Release Conditions
and
Woodhull’s FOSTA Challenge Lays Bare DOJ’s Lies in Lacey/Larkin Case