Prosecutors Say Backpage Defendants Shouldn't Be Allowed To Reference the 1st Amendment

Prosecutors also want a judge to take basically all possible defenses off the table.

The founders and several former executives of Backpage are set to stand trial this August, more than five years after being arrested for allegedly facilitating prostitution and nearly two years since a judge declared a mistrial over biased testimony and prosecutorial overreach. Throughout the prosecution, the government has engaged in questionable tactics that seek to limit the ability of those accused to defend themselves. And it seems federal prosecutors don't intend to stop attempting to abuse their power now.

In a series of motions filed yesterday, the government seeks to prevent the Backpage defendants' legal team from making basically any reasonable attempt to defend against the charges against them.

Most egregiously, prosecutors want to bar them from mentioning the First Amendment. But the First Amendment is at the center of this case, which revolves around user-generated ads posted to a digital classified-advertising platform. The very crux of the matter is online content and speech.

Backpage founders Michael Lacey and James Larkin, along with several former executives at the company, are charged with facilitating prostitution in violation of the Travel Act. The government alleges that they knowingly allowed people to post prostitution ads to Backpage, and prostitution is illegal in most of the country. The defendants argue that the ads in question were for escorting and other forms of legal sex work, which makes them legal speech protected by the First Amendment. And if people posting the ads went on to privately engage in illegal conduct, it was without the knowledge of anyone running Backpage.

Now, the government is moving "to preclude defense counsel, Defendants, and their witnesses from referencing the First Amendment and 'free speech' at any time in the
presence of the jury."

During the September 2021 trial that would be declared a mistrial, a star government witness admitted that he could not say for certain whether the ads prosecutors say are evidence of illegal prostitution were actually ads for illegal prostitution. This is another central—and highly disputed—matter in this case. But the government now argues that the court should simply assume the ads are for illegal conduct and thus categorically excluded from First Amendment protection.

The government's request here is ballsy, bonkers, and an egregious overreach.

Imagine the government trying someone for robbery, having their star witness admit that maybe no robbery took place, and then barring the suspect from arguing that he was innocent because there was no robbery. That's essentially what the government is trying to do here.

In fact, another motion filed yesterday directly argues that the defendants should not be allowed to make declarations "about the legality or illegality of any advertisement, either charged or uncharged."

Of course, the government's case relies on asserting that the ads in its indictment are illegal. Surely, federal prosecutors intend at trial to insist on the illegality of the Backpage advertisements—otherwise, they wouldn't have a case. Yet they want to legally prohibit the Backpage team's lawyers from arguing that the ads were not illegal.

And that's not all. In addition to the motions arguing that the Backpage defense team shouldn't be able to mention free speech or the potential legality of Backpage ads, the government yesterday filed seven other motions, each arguing that a different line of defense should be precluded.

One motion argues that the defense team shouldn't be allowed to reference Section 230 of the Communications Decency Act, the federal law that shields internet platforms and users from some liability for the speech of third parties.

Another motion says Lacey, Larkin, and the other executives shouldn't be able to defend themselves against accusations that they knew they were breaking the law by pointing out that Backpage lawyers repeatedly assured them they were not breaking the law.

Part of the government's case involves impugning the company for charging people to post adult-oriented ads, arguing that this was an attempt to profit off illegal activity. The defense team has pointed out that state attorneys general urged the web classified-ad platform Craigslist to charge for ads because this would create a financial paper trail that made finding and prosecuting wrongdoers easier. The government now seeks to bar the Backpage defense team from referencing this arrangement.

The government also wants to bar the defense team from commenting on the legitimacy of the prosecution and or any tactics employed by prosecutors; from referencing the 2021 trial that was declared a mistrial because of the government's conduct; or from mentioning previous legal cases where courts ruled in Backpage's favor.

And it says that references to Lacey and Larkin's previous First Amendment battle with former Maricopa County Sheriff Joe Arpaio (who was found guilty of retaliating against them for something they published in the Phoenix New Times paper); references to the defendants' families, to the defendants' personal lives, to Lacey and Larkin's extensive history in the journalism industry, or any other comment "on any facts or evidence or individuals that are not anticipated to be introduced into evidence at the trial" should not be allowed in opening or closing statements. In other words, the defendants may not attempt to humanize themselves. 

Let's hope the judge swiftly strikes down all of these motions. The prosecution of Lacey, Larkin, and the other Backpage defendants has already been full of injustices. But this latest batch of government demands reaches a whole new level of audacity and, if granted, would make a total farce of any idea of justice being served here.