The libertarian, free speech zealots at the Cato Institute have more than once come to the defense of the now-defunct classified listings site, Backpage.com, and its former owners, Michael Lacey and Jim Larkin, who along with four former executives and employees of the company are locked in a bitter battle with the federal government.

Even before the site was seized and destroyed by the feds in April 2018 in an unprecedented act of direct government censorship — and before Lacey and Larkin’s arrests at gunpoint — the institute was arguing on behalf of the site’s right to publish under the First Amendment, filing amicus briefs to that effect with various courts.

So it’s not surprising that Will Duffield, a policy analyst with the institute, devotes a section of his recent Cato white paper, “Jawboning against Speech: How Government Bullying Shapes the Rules of Social Media,” to Backpage, specifically Backpage’s 2015 legal victory against Cook County, Illinois Sheriff Tom Dart, who was engaged in what Duffield identifies as an insidious form of government intimidation known as “jawboning.”

Duffield defines jawboning as “the use of official speech to inappropriately compel private action.” A Biblical reference to Samson slaying a thousand Philistines with the “jaw of an ass,” the word first entered the lexicon to describe public officials threatening businessmen and financial markets into complying with the government’s wishes.

As Duffield explains, “Jawboning occurs when a government official threatens to use his or her power — be it the power to prosecute, regulate, or legislate — to compel someone to take actions that the state official cannot.”

In the context of free speech, the First Amendment usually bars government officials from compelling or censoring the speech of American citizens. However, Duffield details how jawboning has increased exponentially in the internet age, where the government “can suppress disfavored speech by dissuading intermediaries . . . from carrying it.”

Both Democratic and Republican politicians are guilty of jawboning social media companies into complying with extralegal dictates, and Duffield offers numerous examples. For instance, President Biden famously told reporters that Facebook was “killing people” by allowing disinformation regarding vaccines on its site. And in an apparent attempt to coerce the internet giant, Biden administration flacks have issued vague threats to Facebook about amending Section 230, the federal law that largely holds interactive computer services harmless for content posted by users.

Democrats have jawboned Facebook, Twitter and other companies over Russian propaganda and hate speech, and Republicans regularly assail social media outlets over perceived anti-conservative biases, such as in social media’s suppression of an election-year NY Post story about Hunter Biden’s laptop.

Republican jawboning often falls into what Duffield calls “must-carry” demands, such as President Trump’s complaint, on Twitter (ironically) that social media platforms “totally silence conservative voices,” warning that, “We will strongly regulate or close them down, before we ever can allow this.” In fact, Texas and Florida have passed statutes requiring social media platforms to carry certain content, and legal challenges to these laws are headed to the U.S. Supreme Court.

Duffield notes that public officials often present “disfavored speech” as potentially illegal to get social media outlets to comply with takedown requests. As for attempts to stop jawboning via court action, Duffield notes that even when a lawsuit to stop jawboning is successful, the result can still favor the censor.

As explained below, Backpage v. Dart certainly fits that bill. But I would argue that the Backpage case, taken in its entirety, offers a chilling example of what can happen when government jawboning is resisted, as Backpage successfully did for many years.

As a result, Backpage’s erstwhile owners face the possibility of spending the rest of their lives behind bars for publishing content that was legal and protected by the First Amendment.

Along Comes Dart

Duffield cites the 2015 decision by Seventh Circuit Appeals Court Judge Richard Posner in Backpage v. Dart as offering “the most contemporary rebuke of government jawboning.” (Cato, along with the Reason foundation and the DKT Liberty Project filed a powerful amicus brief in the case on behalf of Backpage.)  Dart — a Democrat, btw — took aim at lawful, adult-themed ads for massage, dating and escorts that users posted to Backpage for a fee.

Borrowing a page from the feds’ Operation Choke Point, which targeted banks for the suspected crimes of some of their clients, Sheriff Dart sent a letter to Mastercard and Visa, telling them that by processing payments from Backpage, they could be in violation of federal law. As a result, Mastercard and Visa stopped doing business with Backpage, and Backpage sued Dart, claiming a First Amendment violation by the sheriff.

Posner ruled for Backpage, finding that the sheriff had used his office to scare Mastercard and Visa into compliance with his dictates. Posner wrote:

“A public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment.”

That quote could be easily applied to Backpage’s long history with ambitious politicians, for whom Backpage became a convenient scapegoat after their previous whipping horse, Craigslist, divested itself of adult advertising (at least in name) as of 2010.

Indeed, Dart sued Craigslist in 2009, labeling it “the single largest source of prostitution in America,” and lambasting the site for not obeying his orders to shut down its “erotic services” (later, “adult services”) section. But Dart ran smack into Section 230, with federal Judge John Grady finding that the law did not allow Dart to treat Craigslist as the “speaker” of content created and posted to its site by third parties.

Judge Grady also found that Dart was “simply wrong” when the sheriff insisted that the suggestive words used in some adult advertisements were “synonyms for illegal sexual services.” Grady wrote: “A woman advertising erotic dancing for male clients . . . is offering an ‘adult service,’ yet this is not prostitution.”

In ruling on Dart’s subsequent attempt to bully Backpage, Judge Posner made much the same point, one that came up time and again during Lacey and Larkin’s abortive, Sept. 2021 trial: the government could not assume the content on Backpage was illegal.

Posner wrote,

“Nor is Sheriff Dart on solid ground in suggesting that everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.) One ad in the category ‘dom & fetish’ is for the services of a ‘professional dominatrix’ — a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually…It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution.”

And yet, in its ongoing prosecution of Lacey, Larkin, et al. on charges related to the facilitation of misdemeanor state prostitution charges in violation of the U.S. Travel Act, the federal government has asserted that “anyone could tell” the content posted to Backpage for dating, escorts, massage, etc. was illegal on its face.

That lie was exposed by one of the government’s own witnesses at Lacey and Larkin’s trial last year. An investigator with the California AG’s Office admitted on cross-examination that the adult-themed ad content he had reviewed on Backpage was legal. He had never arrested anyone for prostitution based solely on the content of such ads, and he knew of no one who had.

Shortly after this admission, the trial judge declared a mistrial due to prosecutorial misconduct. Prosecutors had ignored her orders and impermissibly made statements and elicited testimony concerning sex trafficking and child sex trafficking, crimes the defendants are not charged with and could never be.

Prosecutors will get a second crack at it in 2023, when Lacey and Larkin are expected to go to trial again, some five years after their arrests.

Jawboning Craigslist

As Lacey’s attorney Paul Cambria put it in one pre-trial oration, “All speech and press are presumptively protected under the First Amendment.”

Unfortunately, the First Amendment didn’t prevent government actors from “jawboning” first Craigslist, then Backpage over ads that numerous federal and state courts have ruled to be shielded both by Section 230 and the First Amendment.

Craigslist famously did away with its adult section in 2010 after being hounded by state Attorneys General, such as (now Senator) Richard Blumenthal, or South Carolina Attorney General Henry McMaster, who threatened to prosecute Craigslist executives if the site did not remove adult advertising for services in that state.

Pressure from Blumenthal and other state AGs led to the mostly-free Craigslist charging users a fee to place adult-themed ads on the site as well as requiring a valid credit card and verified phone number for each transaction. In May 2009, Craigslist announced an intensive manual screening process to review ads before publication.

But for Blumenthal, Craigslist’s adult listings were a “blatant internet brothel,” and by August 2010, Blumenthal and other AGs were calling for Craigslist to shut the section down, notwithstanding the lawfulness of the content.

About a month later, Craigslist complied with the AGs’ demands. Though some content from adult services relocated to the site’s personals section, the government was placated. Neither Craigslist nor its executives have faced prosecution.

Backpage’s tale turned out differently because the site and its owners were unwilling to kowtow to the jawboning tactics of self-aggrandizing politicos.

Backpage Agonistes

Begun in 2004 in an attempt to recoup some of the classified ad revenue lost to Craigslist, Backpage was an immediate beneficiary of Craigslist’s 2010 capitulation. With the new ads came the predictable jawboning by pols, and ultimately more severe consequences.

Shortly after Craigslist caved, Blumenthal and 20 other state AGs publicly called on Backpage to shut down the adult listings on its site because adult sections were “online brothels” that enabled “human trafficking and sexual exploitation of women and children.” For propaganda purposes, Blumenthal and the other AGs casually conflated consensual, adult sex work with sex trafficking, which involves either minors, or the coercion of adults into prostitution.

Ironically, the AGs admitted that Backpage was operating legally, stating that Backpage had a “moral—if not legal —obligation” to purge the ads.

But Lacey and Larkin have spent their entire careers as newspapermen defying authority and resisting any effort to tell them what they could or could not publish. They founded the Phoenix New Times as an anti-war publication in 1970, expanding it over time into what became the 17-paper Village Voice Media (VVM) chain of alt-weeklies.

Backpage was part of VVM at the time, and the bosses weren’t backing down. Backpage issued a reply rejecting the AGs’ demands. The statement took aim at the fact Blumenthal was running for a U.S. Senate seat in Connecticut.

It described Backpage as “a legal business” that “operates its website in accordance with all applicable laws.” Moreover, its employees cooperated with law enforcement, answered subpoenas, testified at cases involving actual traffickers and actively moderated Backpage’s adult services section to remove unwanted content.

From the statement:

Backpage.com is disappointed that the AGs have determined to shift blame from criminal predators to a legal business operator in an apparent attempt to capitalize on political opportunity during the election season.

The Internet was born. The federal government enacted laws to regulate its use and to allocate responsibilities and immunities to web operators. Backpage.com follows those laws and it declines to censor an entire section of free speech from its website.

Censorship will not create public safety nor will it rid the world of exploitation.

Lacey and Larkin remained unwavering as the jawboning of public officials turned into something far more sinister, with ambitious pols using Backpage to advance their careers and achieve unsavory legislative ends.

None other than Vice President Kamala Harris expressed this in an interview with The Root, as she tried to rationalize a war on Backpage that she led as California AG and later as a Senator, stating, “The people who were running Backpage basically thumbed their nose at us . . . And so I called for them to be shut down.”

Jawboning eventually morphed into the criminal pursuit of Backpage. Politicians like Sheriff Dart took the company to court. Three states — Washington, Tennessee and New Jersey — passed unconstitutional laws aimed at criminalizing Backpage. All three were overturned. In the public arena, VVM papers fought back with a series on sex trafficking that debunked dangerous myths about the topic.

In 2012, Lacey and Larkin sold their papers to company insiders, severing Backpage from the newspaper chain. Lacey acknowledged in an interview with the Arizona Republic that the split was brought on by the controversy over Backpage. It was something “local editors don’t need to be defusing every morning when they wake up,” he said.

While running for Senate in 2016, then-California AG Harris had Lacey and Larkin falsely arrested on pimping charges, displaying them for news cameras in orange pajamas, caged in an in-courtroom cell. (This, though it was a year after the pair sold Backpage to longtime CEO Carl Ferrer, who would later cop a sweet plea deal with the feds in return for his cooperation.) Two California judges would end up throwing out the pimping charges.

Interestingly, Harris knew the law was not on her side. In 2013, she signed a letter to Congress along with 46 other AGs, asking Congress to amend Section 230 so the AGs could go after “online classified ad services like Backpage.com.”

Backpage’s resistance and its winning streak in federal court infuriated the jawboners. So Congress passed the Stop Advertising Victims of Exploitation Act (SAVE ACT), a broadly-worded statute intended to target Backpage. The company sued, and though the court sided with the government, it made clear the law had a higher “knowing” standard of mens rea, effectively making it unenforceable.

The Fix

The U.S. Senate’s Permanent Subcommittee on Investigations, Joe McCarthy’s old stomping grounds, took aim at Backpage, eventually hauling Lacey, Larkin and three then-Backpage execs before the committee in January 2017. All refused to testify, based on their rights as described in the First and Fifth Amendments.

Actually, they had no choice. Harris had refiled the pimping charges against Lacey and Larkin in late December 2016, before running off to DC to be a U.S. Senator. Never mind that earlier that same month the charges had been formally tossed by the first judge in the case. The pimping charges were dismissed again in August 2017 by a different judge.

But in January 2017, those charges still hung over Lacey and Larkin’s heads. And anything they said could and likely would become evidence against them. This was known to the PSI. Harris was even allowed to join her fellow Senators in haranguing the men she had falsely prosecuted, though she was not a PSI member.

The subcommittee’s members, which included Lacey and Larkin’s longtime enemy, Senator John McCain of Arizona, took turns shrilly denouncing Lacey, Larkin, et al. (McCain’s wife, Cindy, was in the audience, available to the press after the farce was complete.) The night before the hearing, Backpage announced it was shuttering its adult section, denouncing Congress’ bullying as “censorship,” but for the Senators, this was just blood in the water.

PSI Chair Rob Portman denied there had been any “censorship,” claiming the takedown of the adult section was “a validation” of the subcommittee’s work. Ranking Democrat Claire McCaskill poured on the venom, accusing Backpage of “selling sex” (actually, it sold ads), falsely asserting that Backpage profited from sex trafficking (when it took extensive action to combat it), and calling the site “the definition of evil.”

The whole production was so over-the-top that the First Amendment stalwarts at the non-profit DKT Liberty Project denounced the Senators for “using the power of the federal government to be prosecutor, judge, and jury – all rolled into one”  and for “staging what amount to ‘show trials’ akin to those we expect to see in countries like China and Russia.”

The PSI also produced a one-sided report with the heavy-handed title, “Backpage.com’s Knowing Facilitation of Online Sex Trafficking,” in which quotes and documents regarding Backpage’s moderation practices are presented out of context or deliberately misconstrued.

Reason senior editor Elizabeth Nolan Brown analyzed the report at length, finding that the report’s twisted spin on industry-standard moderation practices suggests “there’s no way for Backpage to win with this crowd.”

In July 2017, Portman and McCaskill sent the PSI report as part of a “criminal referral” to the U.S. Justice Department, and — voila — less than a year later, a federal grand jury issues an indictment of Lacey, Larkin and four others that reads like a rehash of the PSI report.

The grand jury was led by McCain-acolyte and U.S. Attorney Dominic Lanza, who had been nominated to the federal bench by Sen. McCain. Shortly after the indictment was made public, Lanza was approved by the U.S. Senate to be a federal judge in Arizona.

As Lanza’s nomination was moved to the Senate floor, McCain’s ally, Sen. Jeff Flake, praised Lanza for helping the FBI  “raid the homes of Backpage.com’s owners and seize the website.”

Reading from a carefully-worded statement, Flake added an eyebrow-raising admission that Lacey and Larkin had operated within the law:

“The owners refused to take the website down. They were not legally obligated to do so.”

Really? So why did the FBI treat both men like they were El Chapo?

In 2018, Congress passed the disastrous legislation widely known as FOSTA/SESTA, which effectively made adult advertising illegal in the U.S. In debates on the bill, Senators and Representatives invoked Backpage at every turn, claiming the likely unconstitutional measure was needed to “take down” Backpage.

In April 2018, Backpage was seized and Lacey and Larkin were arrested — before President Trump signed FOSTA/SESTA into law. (The feds used the Travel Act instead.) However, FOSTA/SESTA was successful in causing a wave of self-censorship and further endangering the lives of sex workers.

Adult advertising fled overseas to sites that do not answer U.S. subpoenas, and law enforcement officials now pine for the days when they could call on Backpage for assistance in their investigations.

Four years, four judges, and one mistrial later, Lacey and Larkin (and their colleagues) still face a metaphorical firing squad. Both men are in their 70s, they must wear ankle monitors 24-7, and the feds have effectively seized all of their assets (including some attorney trust accounts). If found guilty, they could spend the remainder of their lives in prison.

And yet, they remain defiant.

“It would give the lie to our entire lives, our entire career of being journalists, if the government could come in and put their stubby little fingers in our chest and make us ask for our mommy,” Lacey explained to Reason once. “It ain’t going to happen.”

A wise man once said of the U.S. justice system, “The process is the punishment.” And though I believe they will prevail, that has certainly been the case with Lacey and Larkin.

For what are they being punished?

For defying the “jawboning” of poltroonish politicians, standing up to the federal government, and going to bat for the First Amendment, three things very few people are willing to do.

Please also read:
Backpage’s Victories in Federal and State Courts
and
Humetewa Orders Nov. 2 Status Conference in Lacey/Larkin Case to Discuss 2023 Trial Dates