Backpage

Backpage Defense Lawyers Call for Mistrial After 'Inflammatory' Opening Statements

The defendants are not on trial for child sex trafficking, yet prosecutor Reggie Jones wouldn't stop talking about it.

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The federal trial of Backpage.com's founders and former executives launched last week—and it's off to a frustrating start. In the state's opening remarks, prosecutor Reggie Jones misrepresented Backpage ads and the law, while harping on specific crimes of which the defendants aren't even accused. Defense lawyers are already calling for a mistrial.

"The government's opening argument was a parade of horribles about human trafficking destroying the lives of trafficked women and children, with barely any mention of charged counts and zero linkage of any Defendant to any charged count," states their motion. "The opening offended the law, ignored indisputable facts, and consisted of inflammatory, unproven, and unprovable assertions that fail in any event to address what the government must prove to convict any defendant."

On trial are veteran journalists and publishers Michael Lacey and James Larkin, who founded the classified ad platform Backpage in 2004. Four of their former colleagues at Backpage join them. The six were arrested in April 2018—and authorities have been fighting dirty ever since.

(Reason has written about the lead-up to this arrest and the subsequent prosecution many times; you can find all of our coverage here. For a good overview of who's on trial and what's at stake, see this piece from our December 2018 issue and this video. For more on what federal prosecutors said about Backpage behind closed doors and how it contradicts their public statements, see this piece.)

Lacey, Larkin, and others are charged with facilitating prostitution in violation of the federal Travel Act. They are not charged with sex trafficking, a federal crime that involves not just commercial sex acts (a.k.a. prostitution) but the involvement of minors in such acts or the use of force, threats, fraud, or coercion. Though prostitution is not illegal under federal law, it is a misdemeanor crime almost everywhere in the U.S., and the Travel Act—with its invocation of interstate commerce—gives the feds the means to go after people accused of facilitating it. The defendants are also charged with conspiracy and various money laundering offenses related to this alleged facilitation.

Before Backpage was seized by the feds, it operated much like Craigslist, providing a platform for user-generated ads of all sorts, including adult ads. In its indictment, the Department of Justice cites 50 specific adult ads that allegedly prove defendants facilitated prostitution.

Judge Susan Brnovich of the U.S. District Court for the District of Arizona has stressed multiple times that this case is not about everything ever published on Backpage but the specific ads mentioned in the indictment and whether the specific defendants now on trial knew about these ads and knew they were facilitating illegal activity. Brnovich ruled that federal prosecutors can make general reference to the fact that people have accused the site of facilitating sex trafficking but not reference specific crimes or accusations unrelated to the case at hand.

Yet during opening remarks to the jury last Friday, Jones repeatedly threw around sex trafficking allegations, including the broad accusation that the defendants facilitated "human trafficking" and allowed children to be "sold for sex" Twice, Jones showed jurors images of women whose teen daughters allegedly appeared in Backpage ads.

Jones both opened and closed his remarks to jurors with stories about these women and their daughters. But neither of these families, nor the alleged ads that involved them, are part of the ads making up the indictment in this case. (They are, however, the same two women who have appeared in a plethora of lawsuits, government hearings, and press accounts condemning Backpage for around a decade now.)

Trial prosecutors are not allowed to just randomly tie defendants to heinous crimes they're not on trial for… and yet here we are.

The allegation that Lacey, Larkin, and the other executives sold children for sex is "a bald-faced lie," argues journalist Stephen Lemons at Front Page Confidential, a site published by Lacey and Larkin and edited by Lemons (who used to work for the pair at their flagship alt-weekly, Phoenix New Times). Backpage "did not countenance children on the site or illegality of any kind, both banned by the site's terms of use."

Backpage executives and moderators actively tried to weed out ads featuring people under age 18—though, like Twitter and other social media sites, did not succeed 100 percent of the time. Its official policy was to reject images featuring what appeared to be underage individuals (and to report these to the National Center for Missing and Exploited Children). It also cooperated with law enforcement in prosecuting people who did use the site for harm.

"The FBI's ability to identify and locate sex trafficking victims and perpetrators was significantly decreased following the takedown of Backpage.com," stated a recent Government Accountability Office (GAO) report. "According to FBI officials, this is largely because law enforcement was familiar with backpage.com, and backpage.com was generally responsive to legal requests for information."

This is quite different from the picture Jones painted for jurors last week.

According to the motion for a mistrial, Jones mentioned "children" at least 47 times and "trafficking" at least 13 times.

Jones also conflated all sex work ads on Backpage with ads for prostitution, despite the fact that all sorts of legal sex work was advertised on the site and that—regardless of what people were ultimately doing behind closed doors—posters to Backpage were explicitly forbidden from advertising illegal services like prostitution. He said that all of the money Backpage made from adult section postings was for "prostitution ads" and told jurors that "the vast majority of advertisements on Backpage.com were prostitution."

But "the government has no ability or intention to prove this," note defense lawyers, pointing out that "every single ad the government presented during its opening is a facially legal ad; not a single ad says that a sex act will be performed for the exchange of money."

Jones also improperly represented the defendants' legal culpability, telling jurors that because Backpage executives had been put "on notice" of improper ads—state attorneys general, the Auburn Theological Seminary, and CNN had all raised concerns about Backpage ads promoting illegal activity—executives were henceforth legally liable for any unlawful content. But this is an absurd distortion of how the law works. A CNN broadcast generalizing about bad stuff on certain social media platforms doesn't make those platforms suddenly legally liable for any and all illegal content posted by third parties.

In a maddening bit of damned-if-they-do, damned-if-they-don't, Jones continually portrayed any complaints by any party (media, religious groups, government officials) as hard evidence of the defendants' guilt while simultaneously portraying anything done to rid the site of illegal or explicit comment as more evidence of their guilt. In Jones' telling, anecdotes about bad actors should've made them clean up their act, yet any attempts to clean up their act are also evidence that they deserve to be punished.

Meanwhile, throughout Jones' ample inflammatory and inaccurate statements, he hardly brought up any of the specific ads from the indictment or attempted to prove that the defendants knew about these specific ads.

It seems pretty clear that the prosecution intends to try defendants in this case not based on the actual facts and evidence at hand—nor the specific laws the defendants are charged with violating—but on anecdotes, reputation, speculation, and emotional tales. The government wants jurors to send Lacey, Larkin, and the others to prison for the rest of their lives over things like sex workers using the site, CNN condemning it, and two mothers, roughly 10 years ago, finding ads for their teens among the millions of ads posted to Backpage.

At stake in the trial is much more than the freedom of these defendants, however. Their prosecution represents a major new frontier in federal government attempts to quash online content, interfere with sex work in the digital era, and hold social media platforms accountable for third-party posts. As sex worker and advocate Savannah Sly told The Daily Beast last week: "Sex workers are the canary in the coal mine. And the general public better pay attention to what happens with Backpage."

This trial showcases the lengths the government is willing to go to in order to eradicate and punish speech it doesn't like. And, as Reason has been warning for years, they won't stop at Backpage.

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  1. Did any automatic weapons get transferred to the Taliban via Backpages?

    1. No, just boys.

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    1. But are you on backpage?

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  3. “Before Backpage was seized by the feds, it operated much like Craigslist, providing a platform for user-generated ads of all sorts, including adult ads. In its indictment, the Department of Justice cites 50 specific adult ads that allegedly prove defendants facilitated prostitution.”

    There is no mens rea possible if the defendant in question wasn’t even the person who wrote the ad–by the prosecutor’s own admission.

    Why doesn’t Section 230 protect them?

    If Section 230 applies in civil cases, where the standard is a preponderance of the evidence, why doesn’t it apply in criminal cases where the standard is beyond a reasonable doubt?

    How can there NOT be reasonable doubt when the defendant didn’t even write the ad?

    1. That’s not entirely true. Even *I* know that when someone offers a “girlfriend experience” for “50 roses” they don’t literally mean that you are supposed to show up with a bouquet of flowers and then listen to them nag about the dishes.

      1. Even if the issues with social media and online interactions were addressed with common carrier agreements, the common carrier agreements would be neutral. We don’t charge the executives of AT&T with a crime because their phone system connects the calls of hookers and Johns. Why should this be any different?

        Do we want these platforms discriminating on the basis of content or not?

        Does Section 230 protect the platform from legal responsibility for what people write on the platform or doesn’t it?

        If you want to go after someone for pandering, go after the person who actually put up the ad–rather than someone who everyone agrees didn’t put up the ad.

        1. The crime is facilitation. ‘…Hello AT&T. Do you mind if I use your phone? I want to call a John and set them up with a hooker…’. ‘…Would you run this ad so I can set up a John with a hooker…’. If the jury finds no ‘facilitation’, they will be found not guilty so I suppose that’s when section 230 would kick in and protect them. Be interesting to see how the Judge charges the jury and defines ‘facilitation’. Maybe the Judge will dismiss the case after all this so called ‘evidence’ of ‘facilitation’ is presented. I’m sure they made motions to dismiss the case for the very arguments raised in this article but were denied.

          1. Now provide a case where AT&T was sued for the content of a phone call.

    2. §230(e)(1) explicitly states that the law is inapplicable to criminal law. And the section of federal law that they’re charged under doesn’t require writing the ad. The prostitution-related charge requires that they engage in some interstate commercial activity that they intentionally “promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity.” The feds’ ability to prove this beyond all reasonable doubt is probably going to depend on how they advertised their services and how they policed the site. This article indicates that the Backpage executives attempted to stomp out coerced and underage sex work, but the Travel Act statute isn’t restricted to coercive and underage prostitution.

      1. Thank you for that clarification on section 230.

        I’m trying to imagine something like a hit man for hire website, and whether I would oppose prosecuting the operator of the site on First Amendment grounds. Surely, there’s a point somewhere that my support for the site operator starts to break down. If these charges really were about trafficking children, I wouldn’t complain about the feds going after a site operator that was knowingly and intentionally facilitating that.

        I guess it really does boil down to my ideas about adults freely advertising themselves in this profession. When it comes to adults, I feel like bringing this stuff out into the open is a bit like legalizing marijuana. It’s the black market selling this stuff to kids or trafficking in minors. Bringing it into the light helps keep kids out of it.

        There was a recent episode of This American Life, in which a victim of trafficking talked about how hard it was on her when they shut down Backpage–because that meant she had to find Johns the old fashioned way and how dangerous that could be.

        https://www.thisamericanlife.org/740/there-i-fixed-it/act-one-18

        The fact is that just because I think legalizing the activity would do more to protect these people–and do more to protect children, too–doesn’t mean facilitating is actually legal. I was basically rationalizing. If they were facilitating and facilitating is illegal, then that’s the way it is regardless of whether I think it should be legal.

        I’d have a hard time believing the Backpage people were intentionally facilitating the trafficking of children.

        1. “I’d have a hard time believing the Backpage people were intentionally facilitating the trafficking of children.”

          They weren’t. They probably weren’t (though possibly were) intentionally facilitating adult interstate sex work. But the prosecution is going to tar them with the brush of child sex trafficking because it’ll bias the jury against the defendants.

          Thump the table.

  4. Guilt by association. If you ever sold knives in your store, and a knife-wielding murderer can be shown to have EVER visited in or generally close to your store… YOU are a knife-wielding murderer!!!

    SOME slime-sucking lawyers will do WHATEVER they think that they can get away with, to win their case!

  5. This is one way to lose a case on appeal.

  6. I was watching a YouTube video yesterday where someone said Twitter had turned into a court where you’re always on trial for everything you’ve ever said. It seems like the courtroom is now turning into Twitter, where you’re not even on trial for the the actual charges but for every possible thing that can be tenuously connected to you.

  7. backpage was great. $150 for a young girl and I would go over their house or apt

    1. Only problem was all the young girl ads were stings and the real person behind the ad was a hairy-backed 250 pound FBI agent.

  8. I wonder if the Rules of Criminal Procedure allow the defence to call the Prosecutor as a witness? Seems to me that a defence attorney could have a great time depants’ing ( yes that is a perfectly cromulent word!) the prosecutor to provide actual examples of the alleged ‘bad acts’ he described, and more difficult for him, to show how those relate the crimes charged.

    1. Or, could the prosecutor be charged with perjury?

      1. No, because what lawyers say in court is not evidence. Basically, we’re supposed to discount everything they say. Why they even get to talk is beyond me.

  9. My best guess is they did this on purpose, get the case kicked back and then try and get the defendants to accept a plea with no time and a minimal fine. They just want to get this done with.

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