In opening arguments on Aug. 31 in the Backpage trial, Michael Lacey's attorney, Paul Cambria, emphasized Lacey's commitment to the First Amendment, arguing, "not everything that is adult is a crime."
During opening arguments on Thursday in the Backpage trial in Phoenix, Michael Lacey’s attorney, Paul Cambria, rebutted allegations made by federal prosecutors that Lacey “facilitated” misdemeanor prostitution offenses because he once co-owned the classified listings site, Backpage.com.
“Sex for money is illegal,” Cambria conceded, adding, “but not everything that is adult is a crime.”
Lacey, co-founder of the Phoenix New Times and former executive editor of a 17-paper chain known as Village Voice Media, had every reason to believe that Backpage was operating legally under the law and the U.S. Constitution, Cambria said.
The website’s former CEO and eventual owner, Carl Ferrer, who has made a plea deal with the government in return for testifying against the accused, told Lacey that the content on the site was not in violation of the law and that Backpage “was doing everything we can to help the police” find and arrest sex traffickers.
Cambria pointed out that though Lacey defended Backpage’s right to publish, he was not involved in Backpage’s day-to-day operations. Lacey was “born and raised a newspaperman,” he was a “free speech advocate . . . a First Amendment guy.”
Created in 2004 to compete with Craigslist.org, Backpage hosted ads posted by users for car sales, apartment rentals, jobs, and legal adult services, such as dating, escorts, massage, and striptease. Cambria argued that an interactive website like Backpage could be misused, like the mail, telephones, or FedEx, but authorities don’t shut down those means of communication as a result.
“The only money that Backpage got from anybody who advertised was the cost of an ad,” Cambria said.
He argued that if an ad on its face “doesn’t say sex for money,” and people later meet and have sex for money, “the platform is not responsible for that.”
Indeed, there are a string of court cases that Backpage won in federal courts all over the country, saying Backpage was protected both by the First Amendment and Section 230 of the Communications Decency Act.
U.S. District Court Judge Diane Humetewa previously granted a government motion precluding references to those Backpage wins during the trial.
Lacey and four others face 50 counts of facilitating misdemeanor prostitution offenses under the U.S. Travel Act, as well as an attendant conspiracy count. Lacey and two co-defendants also face additional money laundering and conspiracy charges.
The prosecution is now more than five-and-a-half years old. It first went to trial in September 2021, but ended in a mistrial after just three days of testimony due to prosecutorial misconduct.
Lacey’s longtime business partner, Jim Larkin, had been a defendant in the case until recently. He died in tragic circumstances on July 31. Cambria made one brief mention of Larkin’s death in his opening.
Though Austin Berry, an attorney with the U.S. Department of Justice’s obscenity section, was present at the prosecution table, Berry did not give the government’s opening argument as some expected.
Instead, that task fell to Andrew Stone, an Assistant U.S. Attorney in Phoenix who has been a part of the case since before the first, abortive trial.
How can words like “incall” or “outcall” or “GFE” be illegal in a free society? Does the government want the words banned? After all, anyone who’s ever had a girlfriend has, by definition, had a “girlfriend experience.”
His presentation offered a marked contrast to the 2021 opening argument of Reggie Jones, a lawyer with the DOJ’s obscenity squad, who repeatedly mentioned or elicited testimony concerning heinous crimes that the defendants are not charged with — specifically, sex trafficking, which involves either a child, or an adult induced into the sex trade by force, fraud, or coercion.
Such references were made over and over again in defiance of orders from federal Judge Susan Brnovich, the trial judge at the time, and they ultimately led to the mistrial. (Brnovich later recused herself from the case, and Judge Humetewa was appointed to replace her.)
Notably, prosecutor Stone did not mention trafficking or children during his opening remarks, but instead revived ancient government canards regarding Backpage’s operation.
He depicted Backpage as a conspiracy to make money by promoting or facilitating prostitution. He argued that “escort” was a word equivalent to “prostitution,” and he offered examples of ads that ran on the site, which he said were blatant prostitution ads.
But the ads Stone showed the jury were fairly tame, reminiscent of what you might have seen in the Sports Illustrated Swimsuit issue or on Instagram. Women were dressed in bathing suits or lingerie, sometimes in suggestive poses: staid fare in the internet age.
As with the word escort, Stone claimed words in the ads like “incall/outcall” and “GFE,” which stands for “girlfriend experience,” were “code words” for prostitution.
“And folks, prostitution is illegal,” Stone said.
Stone also harped on links that appeared on certain ads to a site called “The Erotic Review,” or TER, where escorts were rated. At some point, the company banned the links.
The prosecutor portrayed moderation efforts by Backpage as efforts to hide illegality on the site. By taking certain words out, Backpage “sanitized” the ads, according to Stone.
And yet, Stone asserts that even the “sanitized” ads were obviously for prostitution. Which is a contradiction big enough to drive a Mack truck through.
Also, how can words like “incall/outcall” or “GFE” be illegal in a free society? Does Stone want the words banned? After all, anyone who’s ever had a girlfriend has, by definition, had a “girlfriend experience.” And as we all know, having a “girlfriend” doesn’t guarantee sexual congress.
Cambria’s opening statement followed after the prosecutor’s. In it, he effectively rebutted Stone’s talking points.
The defense attorney pointed out that escorting is a legal and regulated service in Arizona and many other states. As far as “incall/outcall” goes, he said, in the context of an escort or a massage, “incall means you go to them, outcall means they come to you.”
Regarding moderation, a practice common to all interactive websites, Cambria contended that “if you take words out, you are not promoting an illegal act.”
Lacey was “acting in good faith,” and was aware of countless letters and emails from law enforcement, praising Backpage for cooperating with the police, answering subpoenas within 24 hours (or less, depending on the situation), and even creating a manual for law enforcement so investigators could use Backpage as a resource.
Cambria read some of the effusive praise of Backpage from law enforcement officials, some of whom were with the Federal Bureau of Investigation. He also pointed out that in 2011, the head of the FBI commended Backpage’s “cooperation and assistance” with an investigation “of great importance.”
A member of the Denver Police Department called Backpage “law-enforcement friendly.” An FBI agent wrote Backpage thanking it for its “proactive efforts” in getting “a violent perpetrator arrested.”
Cambria also said that Lacey had been told by Backpage’s CEO that the company was doing “everything we can to help the police” and that there was no money-for-sex language on the site.
And yet, despite this cooperation and heavy moderation, “the government came in, without a conviction,” and took down the site in 2018, depriving millions of people of their First Amendment rights in the process and censoring protected speech.
Platforms such as Facebook and TikTok also have to deal with people misusing their sites for illicit ends, and yet, the executives of those companies have not been prosecuted.
Pointing to the tattoos on Lacey’s knuckles, which read “Hold Fast,” Cambria said Lacey’s aim as Backpage’s co-owner from 2004 to 2015, was to “hold fast” to the First Amendment and “work with the police to root out all the abusers.”
The jury also heard from Gary Lincenberg, an attorney for one of Lacey’s co-defendants. Front Page Confidential (FPC) will address Lincenberg’s statement in another post.
Judge Humetewa informed the jurors that the court will be recessed until Wednesday of next week. The trial will resume at that time.
Jury selection concluded shortly before opening arguments began. There are eight men and eight women on the jury, four of whom will be picked as moderates by Humetewa. The jury is mostly comprised of people under the age of 40 or 50.
The trial officially began on Tuesday, Aug. 29. It is expected to last until the second week in November.
Please stay tuned for exclusive coverage of the trial at FPC, and follow its editor, Stephen Lemons, on Twitter/X @stephenlemons.
Please also see:
Journalists Call for an End to the Prosecution of Michael Lacey
- Judge Sets Sentencing Dates for Backpage Defendants - February 14, 2024
- Judge Sets Date for Third Trial of Journalist Michael Lacey - January 29, 2024
- Feds Will Retry Lacey, Humetewa Seals Trial Exhibits - January 23, 2024