An opinion column by Michael Lacey
The FBI agent put a gun on me.
He wore a flak jacket more appropriate to a raid on a terrorist’s bomb factory than on my suburban Phoenix home. He stood at the glass door to my office on the morning of April 6, 2018, and demanded that I step away from my computer.
He handcuffed me. Once I was manacled, he asked if anyone else was on the property.
As it happened, my extended family and friends had gathered in town for a party scheduled for the following day to celebrate my recent wedding. I told the agent that my elderly mother-in-law and her sister were in the guest bedroom at the end of the hallway. I offered to go knock on the door and bring out the women to avoid additional drama.
He said that how these women were treated would depend entirely on how they responded to his armed colleagues.
As his theatrical admonition sank in, I watched another agent, gun drawn, bang on the guest-bedroom door. Once inside, he confronted the my new mother-in-law. She was in the shower, naked.
She asked for a towel.
“When an FBI agent tells you to do something, you do it!” he barked.
Maybe it was his first FBI/naked senior citizen confrontation. It was certainly hers.
She was taken outside at gunpoint.
“I was not allowed to dress, only given a robe and taken outside dripping wet. I was later allowed to dress under the watchful eyes of two very rude female FBI agents, and each piece of clothing was carefully scrutinized prior to my being allowed to dress. They also went through my purse and wallet,” the newest family member would later recall.
Her sister, my wife’s aunt, was in the dining room when she noticed a half-dozen agents in FBI vests, guns drawn, ordering her to come outside. She left her morning bagel and complied.
“They asked if I was Mrs. Lacey. They wanted to know where Mrs. Lacey was.”
A man I have known for twelve years was also present for the raid. He’d performed our marriage ceremony, and he was going to keep an eye on the property and feed the cat while Jill and I were away on our honeymoon.
He’d managed to live for 79 years without being handcuffed. Until now.
I was led past them and put into a car with other FBI agents.
My street was clogged with law-enforcement vehicles whose former occupants were swarming my house, removing everything of value.
One mile east, more agents raided the home of my business partner, Jim Larkin. They knew he was out of town. They merely succeeded in terrifying his teenage daughter with their ski masks and drawn weapons. Later that day, they picked him up when his flight touched down at Sky Harbor Airport.
When my wife and her daughter returned from a hike, they were confronted by armed agents, who told them to get off the property. The daughter broke down sobbing. Her mother was only allowed to take her driver’s license and her car, and they drove away as lawmen packed up the contents of our home.
It was early spring and the desert floor was covered in a robe of yellow palo verde blossoms dropped from pale green trees. The mesquites were already oozing their dark, fragrant sap following a wet winter.
I was hustled off to a sterile cell in the U.S. Marshal’s headquarters to await transfer to the federal prison complex in Florence.
A Brief History of Village Voice Media
Getting arrested wasn’t exactly a surprise.
We’d known for more than a year that federal prosecutors were trying to convince a grand jury in Phoenix to indict us. In fact, our attorneys had assured the Department of Justice that we’d turn ourselves in if and when the time came.
The feds declined the offer with a warning: When we want them, we’ll come get them.
Why did they want us?
Jim Larkin and I owned Village Voice Media, a nationwide chain of free weekly tabloids that had its roots in the Arizona desert and Phoenix New Times, which we founded in 1970. By the mid-2000s, when our company merged with the Village Voice chain and assumed its famed name, the business numbered seventeen papers and stretched from Los Angeles to New York and from Miami to Seattle.
Over the 40 years that we ran the organization — we sold Village Voice Media in 2012 — its mix of long-form journalism, arts criticism, and opinion columns won more than 1,400 national writing awards, including the Pulitzer Prize.
Like every other newspaper publisher, we financed our journalism with ads. Historically, it wasn’t full-page display ads from Macy’s and Nike that paid the freight in our industry; it was classified ads. That fact explains why Craig Newmark, who posted classified ads free of charge on his website, Craigslist, was able to so quickly and so thoroughly devastate the American press.
In 2004, our company asked one of its employees, Carl Ferrer, to develop an online ad network to compete with Craigslist.
The ad network was dubbed Backpage.com.
Just as Craigslist did, Backpage would achieve notoriety for hosting content posted by sex workers, who advertised their trade alongside listings for apartment rentals, secondhand merchandise, and thousands of other categories of goods and services.
In point of fact, so-called alternative weeklies like ours, from their advent in the 1950s, hosted adult advertising.
As Backpage flourished, its adults-only section made it a target for prosecutors, lawmakers, abolitionists, religious zealots, and the well intentioned, who demanded that we shut it down.
Our response was simple and direct: The First Amendment did not embrace politicians and do-gooders and their censorious notions regarding what publishers might print. There’s the door.
We turned to the courts for relief.
And we’ve been in the courthouse ever since.
How to Make Enemies in High Places
Jim Larkin and I learned from the get-go that good journalists need good lawyers.
Coverage in Phoenix New Times consistently attracted the splenetic grimace of law enforcement: the head of campus security at Arizona State University, the chief of the Phoenix Police Department, the Maricopa County sheriff, the director of the Arizona Department of Public Safety.
Jailed by both Sheriff Joe Arpaio and Police Chief Ruben Ortega, and followed and investigated by DPS Director Ralph Milstead, Larkin and I developed a seasoned understanding of the dangers attached to the First Amendment and the ideals of free speech.
All of this attention from law enforcement happened long before Backpage came along.
(Sheriff Joe’s stunt was particularly instructive. In 2007 he had us both arrested at our homes and jailed for revealing in Phoenix New Times that a grand jury had subpoenaed the paper’s writers, editors, and — in a breathtaking insult to the Constitution — the identity of its online readers. The grand jury targeted the paper after New Times had undertaken numerous investigations into the sheriff’s finances and jail management. The charges were quickly dropped, as was the grand-jury inquiry. Maricopa County wound up paying $3.75 million to settle the suit we filed for wrongful arrest.)
This time prosecutors say Backpage facilitated prostitution.
What it facilitated was advertising. Federal courts have concurred. Repeatedly.
As our attorneys pointed out in a recent motion, “Nine different courts have upheld these principles and rejected accusations that Back-page could be liable under federal or state criminal laws.”
One judge noted that his court “was not aware of any authority that would permit the government to indict Backpage on the ‘novel vicarious liability theory’ that it could be liable for criminal acts of website users.”
Just the opposite, our attorneys noted: “Courts have universally held that ads posted on Back-page are presumptively legal and constitutionally protected speech….”
Additionally, when he was director of the FBI, Robert S. Mueller III — yes, that Mueller — commended Backpage for its assistance in rescuing young wayward souls.
But strong political currents agitated by Senator John McCain, now deceased, and his beer-baroness wife Cindy — with her high-church hair bun and her wildly exaggerated campaign against child sex trafficking — swamped prosecutorial restraint and common sense.
The McCain medicine wagon hauled out roundheads, god botherers, creeping Jesus crawlers, and magical legislative elixirs meant to banish sex workers.
Cindy McCain, in particular, fixated on trafficking. She has said that she saw the light during a trip to India, after she purchased some gewgaws for her daughter that she suspected — with no evidence — had been made in a sweatshop. (Evidently, her inherited riches obviated the need for facts.)
The McCains’ fellow carnival barker, Missouri Senator Claire McCaskill, supervised the inquisition within the halls of Congress.
Even as the government spends millions of dollars trying to put us behind bars, it has not appropriated a penny to aid sex workers with counseling, education, housing, or job training. The logic apparently hails from an unpublished Dr. Seuss book that begins: “The ‘world’s oldest profession’ exists because of Backpage, which began in 2004.”
The voluminous legal filings on both sides are suggestive of Dickens’s depiction of the legal world in Bleak House; the briefs of no brevity would cross the eyes of a cigar store Indian.
Let me suggest that instead of a jurist’s bewigged summation, you consider instead a homespun analogy.
Think of Backpage as a corkboard in a laundromat. We don’t write the ads on Backpage. Readers post the ads on Backpage much the same as a customer washing their socks in a laundromat posts a three-by-five card on the corkboard next to a clothes dryer. If that customer advertises a used television for sale, the laundromat is not vouching for the television. Nor is the laundromat responsible for the programs the television purchaser watches.
Congress codified this analogy into law with the Communications Decency Act of 1996 — specifically Section 230, which holds that websites are not liable for content posted by users.
Weaponizing the Courts
In 2011, seven years after Backpage and its bawdy classifieds made their debut, the attorneys general of all 50 states (who endearingly identified themselves as NAAG — for the National Association of Attorneys General — and who were given to addressing one another with the avuncular “General”) took notice.
Hearings were held, meetings were taken, summonses were issued, and sternly worded letters followed.
Prosecutors ran for office on a new plank: “Get Village Voice Media and Backpage.”
In October of 2016, Kamala Harris, then-attorney general of California, had us jailed on state charges shortly before the election in which she was seeking a seat in the U.S. Senate.
Harris had acknowledged previously in a letter to Congress that she had no authority to attack Backpage, but she tabled her admission in the face of a political campaign.
In a visual echo of Egyptian strongman Abdel-Fattah-el-Sisi’s trial of his country’s former president, Mohamed Morsi, Harris had us confined in a barred cell inside the courtroom, and she then brought television cameras into the hearing.
A judge dismissed her complaint, but Harris got her perp-walk footage — and she promptly filed identical allegations a second time. A new judge again dismissed the charges but allowed the state to try to make a case against us for money laundering.
The matter yet lingers.
The table was set for the drama to shift to the federal stage.
The Farce of Civil Forfeiture
The FBI’s April 6 ransacking took all day.
They grabbed everything they thought might be of value: jewelry, including wedding rings; artwork, including items of merely sentimental value; cars and trucks; computers; phones; watches; cameras; passports; and cash, including miscellaneous currency leftover from travel overseas. They also seized vacation homes and other real estate.
Neither Jim nor I understood the extent to which our homes had been looted until we were let out. It was then we learned that along with our personal property, the government had seized our bank accounts and taken away our ability to pay bills: gas, electricity, garbage collection, taxes. Credit cards were canceled.
Pretrial services recommended that Larkin and I be released on our own recognizance. But the government insisted upon a bond of $1 million apiece. (“I have guys with first-degree-murder charges with a lower bond than yours,” Paul Dickerson of A Affordable Bail Bonds observed.)
One federal prosecutor, a supervisor no less, explained to our lawyer that they weren’t concerned with our groceries and utility bills and that we should borrow money from our families.
My family is one generation removed from subsistence. Our maternal grandmother raised my sister in the Carlisle housing projects in upstate New York. My retired brother is battling not simply blood cancer but the bills that accompany mere survival.
They can’t afford my groceries.
None of those who were indicted have a silver spoon anywhere in the cutlery of their extended families.
The show of force at our homes was just the beginning.
The U.S. Attorney made it clear that he intends to put us in prison for the rest of our lives.
Federal prosecutors in Phoenix have ordered that Jim Larkin and I be deprived of the lawyers who have represented us for the past fourteen years.
They seized funds we’d set aside for legal expenses.
To further grease the chute to incarceration, they have sought to limit us to attorneys who know nothing of this long-running legal brawl.
They want us to counter their jihad with public defenders.
Finally, the prosecutors told the judge they needed to delay the trial until January of 2020. In the interim, the federal prosecutors in Phoenix and their colleagues in the Department of Justice intend to see us, and our families, crippled and destitute.
It is obvious the U.S. Attorney aims to strangle us into a settlement negotiation by postponing our trial while choking off our air hose.
This is one approach to extracting a plea agreement. And as we have come to learn, it is not uncommon.
Freedom of Speech Is the First Casualty of Authoritarianism
The fact that we no longer owned Backpage did not deter the government from dragging us from our homes in handcuffs.
We sold Village Voice Media in 2012 to a group of the chain’s longtime executives, and in 2015 we sold Backpage to Carl Ferrer, the man we’d brought aboard to develop the site.
In April, as part of a plea agreement with the Justice Department, Ferrer agreed to become a witness for the government and to close Backpage, the world’s second-largest classified advertising business.
During a discussion about her novel The Handmaid’s Tale this past spring, Margaret Atwood told the New York Times that “[t]he first thing that [repressive regimes] try to do is control the communications network. So grab…the newspapers, that is usually the first move because then they can control the message.”
The message delivered by the ambitious Arizona federal prosecutor to the millions of people who submit legal classified advertisements is that this judicial careerist and his political overseers will not tolerate a website they disapprove of.
They will not tolerate ads from people they disapprove of, which is to say: sex workers.
We no longer hold First Amendment rights as publishers because federal prosecutors and politicians have arbitrarily decided we don’t. If this message is not clear to us, then they will throw us in prison, disqualify our lawyers, and confiscate everything we possess.
Yet we are not discouraged.
Our decades of journalism have familiarized us — up close and personal — with prosecutorial excess. We are fixin’ to give Donald Trump’s Justice Department some of that resistance everyone’s talking about.
In the 21st century, Jim Larkin and I remain the only American journalists to have been arrested and jailed both for what we wrote and for ads we published.
That’s too long for a tattoo.
Better, perhaps, is what a great Texas writer once said:
So Far, So Bueno.