U.S. Attorney’s Office Wants to Ban First Amendment in Free Speech Case

constitution in flames
If the U.S. Attorney's Office has its way, the First Amendment will be banned in federal court (liveslow via iStock)
The U.S. Attorney's Office for Arizona wants a federal judge to forbid any mention of the First Amendment or free speech before the jury in the upcoming retrial of Lacey and Larkin.

Is the U.S. Attorney’s Office for Arizona getting legal advice from North Korean dictator Kim Jong Un?

Forgive the jest, but on Thursday, prosecutors in the August 8 retrial of veteran newspapermen Michael Lacey and Jim Larkin filed nine pretrial motions, known as motions in limine,  that read like crude parodies of totalitarian propaganda passed off as legal filings in a U.S. federal court.

Contrary to rumors, Kim Jong Un is not advising the U.S. Attorney’s Office on legal strategy (via Flickr)

In a prosecution of Backpage’s ex-owners based solely on the publication of content posted by others, the U.S. Attorney’s Office wants to ban, among other things, any mention of the First Amendment or free speech before the jury at Lacey and Larkin’s retrial.

To allow the defense to do so, would “confuse the issues, mislead the jury, and waste time—by making inapplicable legal arguments,” the motion states.

The prosecution’s Orwellian-ly titled Motion in Limine to Preclude References to First Amendment and Free Speech was written by lifelong Assistant U.S. Attorney Kevin Rapp, as were the other eight motions.

In the motion concerning the First Amendment, Rapp cites defense statements from the first trial of Lacey and Larkin (which ended in a mistrial in Sept. 2021 due to repeated prosecutorial misconduct) that he believes should be verboten.

These include:

“This whole case is about the First Amendment.”

“They’ve done nothing wrong except maintain our First Amendment[.]”

“It’s also my privilege to be a part of this group to represent all of these folks in the defense of their First Amendment rights.”

“The danger of not having a clear standard . . . is what undermines our First Amendment. A slippery slope. Once we go past an illegal ad, sex for money, to anything other than that, kiss it good-bye.”

“[T]his is [a] prosecution against a First Amendment provider.”

“[Defendants] believe in the First Amendment and the proof will show that they’re the real deal.”

My word, can you imagine such outrageous statements being permitted in a courthouse in the United States of America?

Ironically, the government did not object to these statements in the initial trial, nor were they blocked or stricken from the record by the trial judge at the time, Susan Brnovich.

Yet, Rapp bizarrely argues that Brnovich settled the issue, by deciding to postpone addressing any First Amendment issues until the final jury instructions, rather than addressing the First Amendment in the preliminary jury instructions, which are read at the beginning of trial.

Because of the mistrial, Brnovich did not rule on whether an explanation of First Amendment law would be included in the final instructions to the jury.  Significantly, the judge did not bar anyone from mentioning free speech or the First Amendment. Brnovich later recused herself and was replaced by federal Judge Diane Humetewa.

Certainly, defense statements about the First Amendment and free speech did not lead to the 2021 mistrial.

Instead, Brnovich declared a mistrial because prosecutors, in violation of her orders, repeatedly mentioned and elicited testimony about rape, sex trafficking and child sex trafficking—heinous crimes with which Lacey, Larkin, and their four co-defendants are not charged.

stalin
No discussion of free speech in an American court case that’s all about speech? Stalin would approve. (Chris Hoyle via Flickr)

The100 federal charges stacked against Lacey and Larkin stem from their former ownership of the classified listings giant, Backpage.com, a Craigslist-like site that was filled with presumptively-protected speech, including ads for things like car sales and apartment rentals as well as for dating and escorts.

It’s the adult-themed ads that the government finds objectionable.

Prosecutors allege Lacey, Larkin and the rest facilitated misdemeanor state prostitution offenses in violation of the U.S. Travel Act. The government claims Backpage’s adult ads were “blatant” prostitution ads, and therefore not deserving of First Amendment protection — even though the ads did not offer sex for money and many expressly denied being solicitations of prostitution.

Regardless of whether any of the charged ads were associated with prostitution, the First Amendment requires that the government prove in court that the defendants knew that was the case and intended to facilitate those crimes.

Not only can the government not do so, but, at the last trial, the prosecution’s lead witness, Brian Fichtner, a Special Agent Supervisor with the California AG’s office, admitted under cross-examination that all the adult ads he reviewed were facially legal.

Fichtner said he could not determine whether any of the ads related to lawful or unlawful activity, unless he was in the “room where it happened.” Nor could he make a prostitution arrest based on the ads alone, and he knew of no one who had.

He also conceded that sex workers have First Amendment rights, just like everyone else.

But if the prosecution gets its way, Fichtner would be “precluded” from making such statements before the jury.

“Precluding” a Defense

Backpage was filled with speech, and its seizure and destruction by the FBI was an egregious First Amendment violation.

The idea of censoring the discussion of the First Amendment and free speech during a trial concerning government censorship would make Stalin’s corpse crack an evil grin.

A screenshot showing how Backpage.com looked in 2016, two years before the U.S. government seized and destroyed it (Internet Archive)

Federal and state courts consistently ruled that Backpage’s right to publish adult-themed ads was protected by Section 230 and the First Amendment. Three state laws targeting Backpage were struck down in the process.

The feds have an answer for that.

In a separate motion, the government asked Judge Diane Humetewa to bar “all counsel, parties, and witnesses” from even mentioning those cases in front of the jury, even though this string of legal victories plainly is relevant to the state of mind of Lacey, Larkin and their four co-defendants.

“There’s a famous saying from an unknown federal prosecutor, who said, ‘I became a prosecutor because I hated bullies, and I quit being a prosecutor because I hate bullies.'” — Tucson defense attorney Michael Piccarreta

In particular, the government seeks to prevent the jury from learning that a different federal court previously held, in a case involving Backpage, that the “third-party publication of offers to engage in illegal transactions does not fall within ‘well-defined and narrowly limited classes of speech’ that fall outside of First Amendment protection.”

Prosecutors also want to ban:

One of the motions actually wants to prevent the defense from making any reference to Lacey and Larkin having families or the pair’s history of award-winning journalism in the 17 alternative newsweeklies they once owned.

Indeed, it’s hard to read the government’s motions and not conclude that it simply seeks to preclude Lacey and Larkin’s attorneys from putting on a defense — any defense, period.

In fact, the government has already attempted to neutralize the defense by seizing nearly all of Lacey and Larkin’s assets, including monies earned from their newspapers and more than $10 million in attorney’s trust accounts, meant to cover legal costs.

Over a period of five years — involving four judges and one mistrial — numerous defense attorneys have been forced to remove themselves from the case. Three defendants are now represented by lawyers appointed and paid by the court system.

After the feds seized funds set aside for the defense of one of Lacey and Larkin’s codefendants, Tucson attorney Michael Piccarreta had to withdraw from representing his client.

He told me recently that this case is “one of the most overzealous, cruel prosecutions that have shown its face in federal court.”

Piccarreta is a former president of the State Bar of Arizona and a founding member of the Arizona Attorneys for Criminal Justice. He bemoaned the feds’ “win at all costs” strategy in this case.

Though we spoke before these motions were filed, one comment remains apt.

“There’s a famous saying from an unknown federal prosecutor, who said, ‘I became a prosecutor because I hated bullies, and I quit being a prosecutor because I hate bullies.'”

He added, “And, you know, you’re witnessing it.”

True.

But I also think we’re witnessing Kevin Rapp and the U.S. Attorney’s Office jumpin’ the ever-lovin’ shark.

Please also see:
Lacey/Larkin Judge Nixes Defense Motion on DOJ’s Janus-Faced Woodhull Arguments
and
Motion to Dismiss Calls Out DOJ Duplicity in Backpage/Woodhull Cases

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About Stephen Lemons

Stephen Lemons is an award-winning investigative journalist with more than 20 years of experience covering everything from government corruption to white-supremacist gangs. In addition to Front Page Confidential, his work has appeared in Phoenix New Times, the Los Angeles Times, Salon.com, and the Southern Poverty Law Center’s Intelligence Report magazine.

One comment

  1. Maybe the prosecution should demand that the defendants wear orange jumpsuits and be Shackled the whole trial also they should request in the interest of getting an impartial jury that all jurors and potential jurors take an IQ test and only those with an IQ less than 110 relatively close to the norm be allowed

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