The Arizona Republic recently published a report of an April 23 hearing in the federal Backpage prosecution in Phoenix, claiming  prosecutors had revealed “new evidence,” which demonstrated that Michael Lacey, a former owner of the now defunct classified ad website Backpage.com, was aware of and complicit in sex trafficking taking place on the site.

This so-called evidence consisted of internal Backpage emails from 2012, appended to a government filing. Instead of demonstrating guilt, they illustrated the prosecutors’ flawed theory of the case, which is detailed in a motion to dismiss filed on behalf of the defendants by First Amendment attorneys James Grant and Robert Corn-Revere of the powerhouse law firm Davis Wright Tremaine (DWT).

In case you’ve been living off the grid for the past year, the U.S. Justice Department is pursuing a 100-count indictment against Lacey and his longtime business partner, fellow newspaperman Jim Larkin, along with five former Backpage execs and employees, alleging that the defendants promoted prostitution across state lines in violation of the federal Travel Act. Prosecutors also hit defendants with multiple charges of conspiracy and money laundering.

Read the defense’s Motion to Dismiss in the Backpage case

The DOJ contends that the defendants knew prostitution and sex trafficking were taking place on the site’s adult services section, where escorts, dominatrixes, masseuses and so on posted perfectly legal advertisements at a premium. Though, significantly, the government has brought no sex trafficking charges against any of the defendants.

(To be clear, prostitution is consensual commercial sex among adults, normally prosecuted on a local level. By contrast, according to federal law, “sex trafficking” involves either minors in the sex trade, or adults compelled to sell themselves through force, fraud or coercion. Human trafficking is an umbrella term that encompasses both sex trafficking and labor trafficking, which is far more common.)

In the indictment, attorneys for the government have listed 50 ads that they say ran on Backpage and allegedly involved illegal activity, such as prostitution and sex trafficking.

Which may sound like a lot. That is, until you realize that Backpage was at one time the second largest online classifieds site in existence, with Craigslist at number one. Backpage operated in scores of countries and hundreds of cities worldwide, and published, literally, millions of ads in both its adult section and in various quotidian categories like help wanted, puppies for sale and apartments for rent.

Read the defense’s appeal to the Ninth Circuit on the feds’ seizure of Lacey and Larkin’s assets

So how could Lacey and Larkin, who sold their interests in Backpage in 2015 to company CEO Carl Ferrer, be aware of 50 listings out of millions when neither man was involved in the tedious line review of ads for publication?

Indeed, most of the 50 ads in question were posted to the site after Lacey and Larkin sold their portions of the company to Ferrer.

And there’s the rub, because the government never alleges that the defendants had specific knowledge of wrongdoing by third party advertisers. Rather, as DWT’s motion explains, the government’s theory is that the defendants “may be criminally responsible for general awareness that third parties used Backpage.com for criminal purposes.”

The motion argues that demonstrating “general awareness” is not enough to prosecute someone for a crime under the Travel Act.

Nor does the First Amendment allow for such prosecutions in the case of a publishing enterprise, which is what Backpage was until April 6, 2018, when federal gendarmes shut it down, arrested Lacey, Larkin and their co-defendants, and seized all of Lacey and Larkin’s assets, in an egregious act of direct government censorship.

The recent Republic story makes it seem as if the release of this “new evidence” by the prosecution is somehow damning for Lacey and his co-defendants. It’s not.

In its filing, the government trotted out a couple of email strings from 2012, where Lacey and others discuss how to respond to an inquiry from New York Times columnist Nicholas Kristof, a notorious prig, who, in preparation for an opinion piece, had asked Backpage to comment on the case of a 13 year-old girl allegedly advertised on Backpage.

The Republic piece offered this partial quote from Lacey’s email:

“Of course there are kids who get through the system … as there are in bars.”

The full quote from the 2012 email exchange reads as follows:

“We do how many million ads, and he picks out one, tells us by the end of the day and wants our total response by a.m.? Of course there are kids who get through the system. As there are in bars. This makes pursuit of solution, i.e., USC study, more critical rather than scoring political points.”

The “USC study” apparently refers to a report on human trafficking online by the University of Southern California’s Annenberg School for Communication & Journalism. The study advised against “singling out [online] technologies as a root cause of trafficking,” and proposed that these technologies “be leveraged to provide actionable, data-driven information in real time to those positioned to help victims.”

Given such context, as well as the fact that Backpage regularly cooperated with law enforcement in order to catch perpetrators who were misusing the site, only a latter-day Inspector Javert would look at such an email and assume that it established guilt.

It would be far easier to draw the opposite conclusion, that the email’s author does not want underage individuals accessing Backpage and is seeking workable solutions to a vexing social dilemma.

That seven-year-old quote is part of what the motion to dismiss describes as a “tapestry of generalized claims” against the defendants. In relation to the Travel Act, case law dictates that the government prove “a specific intent” to promote illegal activity across state lines and show actions taken by the defendants to further that intent.

The defense motion points to a 1974 ruling from the Ninth Circuit U.S. Court of Appeals, wherein the court upheld a dismissal of Travel Act charges against a maker of gambling equipment, finding that even if the company knew its customers would violate a state law by purchasing the items, that knowledge would not be enough to establish the specific intent required under the law.

The motion cites other case law supporting its contention about specific intent. It even quotes one of the U.S. Attorneys assigned to the Backpage case, Reggie Jones, from a November 2017 U.S. Attorney’s Bulletin, explaining, in regards to sex trafficking and money laundering, that it is not enough to prove that “the defendant engaged in `knowing promotion’ of the unlawful activity,” but that the government must show “the specific intent to promote” that criminal activity.

In a February 2018 letter to the then Chairman of the U.S. House Judiciary Committee, Bob Goodlatte of Virginia, the DOJ expressed its concern over a new law to address adult advertising, the Fight Online Sex Trafficking Act (FOSTA), arguing that there already was a high burden of proof in such cases and that FOSTA made it higher.

The letter states:

“Under current law, prosecutors must prove that the defendant knowingly benefitted from participation in a sex trafficking venture, knew that the advertisement related to commercial sex, and knew that the advertisement involved a minor or the use of force, fraud or coercion.”

That’s not all. As the motion relates, in a recent lawsuit from the Woodhull Freedom Foundation, a civil rights organization seeking to enjoin FOSTA, lawyers for the U.S. government again argued that under the Travel Act, a prosecutor must prove specific intent. The court agreed with the government that the law applies to “specific unlawful acts with respect to a particular individual, not the broad subject matter of prostitution.”

Like a Sherman tank crushing all obstacles in its path, DWT’s motion to dismiss effortlessly rolls over the errors in the government’s indictment, such as “the erroneous assumption that all ads on the platform are constitutionally unprotected.”

Under the First Amendment, the government does not get to make that assumption. And the government “cannot criminally punish publishers or distributors of speech” without proving that “a defendant knew the specific speech that is the basis for criminal charges was illegal.”

The motion takes note of a 1959 U.S. Supreme Court decision in Smith v. California, which overturned a Los Angeles ordinance “making it a crime for booksellers to possess obscene books.” Notably, the First Amendment does not protect obscenity. Still, “the court held that a bookseller could not be prosecuted without proof it had knowledge of the contents of any given book.”

The motion to dismiss blasts the government for ignoring the First Amendment implications of the Backpage case and for pursuing “a novel theory of vicarious liability never embraced by any court.” As the motion observes, “[S]peech must be presumed to be protected unless and until the government proves otherwise.”

But what the DOJ has done in the Backpage case looks a lot like prior restraint, which is anathema under the First Amendment.

The government has done its best to smear Lacey, Larkin and their co-defendants. The “new evidence” released by the prosecutor was done in opposition to a request from Lacey that he be allowed to remove his ankle monitor so he could exercise by swimming. (Both Lacey and Larkin were released on $1 million bonds a piece, about a week after they were collared by the cops. Wearing an ankle monitor is a requirement for both.)

In its opposition to the request, the government claimed that the case against Lacey had grown stronger because of this “new evidence.” Thus, it reasoned, Lacey would have an even greater motive to flee.

The court denied Lacey’s request on other grounds, but the government’s “new evidence” ironically shows how insubstantial its case is. The government cannot prevail under the law, so it is determined to pressure Lacey and Larkin until they capitulate.

In part, it has done this by seizing all of their assets and hobbling their ability to afford a defense that must review millions of documents before trial, which is currently set for January 2020.

But that move is being challenged at the Ninth Circuit, where a panel will hear oral arguments in July concerning Lacey and Larkin’s contention that the government cannot preemptively seize the proceeds of a publishing enterprise. To do so would be a de facto violation of the First Amendment.

In addition to the asset forfeiture, the prosecution’s been engaging in numerous other questionable tactics.

Early on, the government flipped Ferrer, who pleaded guilty to one count of conspiracy in federal court and has agreed to testify against his ex-partners.  (It was Ferrer who came up with the idea for Backpage in 2004, as a means of challenging the hegemony of Craigslist.org over the online listings market.)

Backpage’s former sales director Dan Hyer also has pleaded guilty to conspiracy and is expected to testify if the case goes to trial.

But that’s not enough for the feds, who have attempted unsuccessfully to have DWT kicked off the case and seized a bank account set up by the defense to pay DWT. The feds also seized bank accounts established to pay attorneys’ fees for co-defendants Andrew Padilla and Joye Vaught, two former Backpage employees, who are reportedly indigent.

As a result, attorneys for Padilla and Vaught asked the court to either dismiss the case against their clients or release them from their defense. On May 2, U.S. Circuit Court Judge Susan M. Brnovich declined to dismiss the case against Padilla and Vaught, while allowing their attorneys to withdraw. She ordered the clerk of court to assign either public defenders or private attorneys on contract with the court to take up Padilla and Vaught’s cause.

Under the circumstances, will Padilla and Vaught ultimately feel compelled to cop a plea, like Ferrer and Hyer have?

Interestingly, Brnovich, who is new to the federal bench, recently took over from Judge Steven P. Logan. At the beginning of March, Logan mysteriously recused himself from the Backpage case  without offering an explanation as to why.

Brnovich’s order in regards to Vaught and Padilla was reasoned, matter-of-fact and unsurprising.

DWT’s motion to dismiss may be a tougher hill to climb. The government will tut-tut the First Amendment claims as insubstantial, and argue that the since the First Amendment does not protect criminal acts, and since the defendants are accused of same, they cannot seek relief on First Amendment grounds.

It’s the sort of circular logic that prosecutors are fond of, the kind that has trundled many innocent men off to prison.

But in this case, as the motion to dismiss demonstrates, the law is not on the government’s side.

For more on the Backpage prosecution, check out:
Extra, Extra! All of FPC’s Coverage of the Backpage Case in One Place

And read Michael Lacey’s firsthand account of the raid on his home:
Lawyers, Guns, and Money (And to Hell with Free Speech)