Backpage: The Monumental Free Speech Case the Media Ignored

After a dozen years of legal tussles, seven years in the crosshairs of ambitious prosecutors, and five-and-a-half years fighting a federal case that saw his business forcibly shuttered, his assets seized, and his longtime partner dead by suicide, alt-weekly newspaper impresario Michael Lacey was found guilty Thursday on just one of the 86 criminal charges levied against him in connection with the online advertising platform Backpage. But the government's fanatical pursuit of Lacey and his four other Backpage co-defendants is far from over. 

Lacey, an award-winning investigative journalist, was found guilty of international concealment money laundering, which could land him in prison for up to 20 years, and not guilty of international promotional money laundering. But after a week of contentious deliberations, the jury could not come to agreement on the other 84 charges, prompting U.S. District Judge Diane Humetewa to declare a second mistrial in this case. That means Lacey could face a third federal trial essentially for the crime of running a classified ads site that knowingly enabled and profited from illegal, if consensual, transactions involving sex.

Thanks to Section 230 of the 1996 Communications Decency Act, the speech and conduct of website consumers is considered to be the legal responsibility of the speakers themselves, not the owners of the platform. This has been a thorn in the side of politicians and other would-be censors ever since. In 2013, Kamala Harris and 46 other state attorneys general sent a joint letter to Congress urging a rollback of Section 230; the letter started like this: "Every day, children in the United States are sold for sex. In instance after instance, state and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com."

Seven weeks before her election to the U.S. Senate, Harris, along with her Texas counterpart Ken Paxton, brought the first criminal case against Lacey, his partner Jim Larkin, and other executives at Backpage, who were paraded in a Sacramento courtroom cage wearing orange jumpsuits. That case was tossed out by a judge who pointed out: "Congress did not wish to hold liable online publishers for the action of publishing third party speech….It is for Congress, not this court, to revisit." 

But just three days before leaving the A.G.'s office for the Senate, Harris filed yet another Backpage case, which was yet again thrown out (partially) because of Section 230. Once in Congress, Harris helped push through the Fight Online Sex Trafficking Act, or FOSTA, which does peel back Section 230 to make websites liable for the "facilitation" or "promotion" of prostitution by their users, even though prostitution itself is not a federal crime. 

This latest retrial did not rely on FOSTA, but the defense was barred by the judge from even bringing up Section 230, on grounds that the law is only applicable to state crimes, not federal crimes. That was one of many odd bench rulings in the case; the defense filed five unsuccessful motions for a mistrial, with a sixth still pending over possibly exculpatory material withheld by the prosecution until after closing arguments had been made. 

As part of the jury verdict Thursday, former Backpage executives Scott Spear and John Brunst were found guilty of conspiracy to facilitate prostitution, as well as on over 20 counts apiece for money laundering, plus an additional 18 prostitution counts for Spear. The two men could very easily spend the rest of their lives in prison. The other two defendants, Andrew Padilla and Joy Vaught, were found not guilty on their 51 prostitution counts, with Vaught's attorney Joy Bertrand saying after the verdict, "My client should have never been in this case. She was charged and pressured to cooperate and assist the government, and she had the courage to say no," and also, the case "should never have been brought…[because] it's an offense to the First Amendment." Bertrand also added, "They come after this platform, they come after other platforms next….This affects everybody."

This precedent, in combination with FOSTA's degradation of Section 230, means that publishers of websites that include user-generated content are considerably more vulnerable to being held criminally liable for the conduct of their customers. It will chill speech, by design. Politicians wanted first Craigslist, and now Backpage, to get out of the online sex-ads business; now that activity has moved to more shadowy areas of the black market. 

This has had bad consequences for sex workers, sex consumers, and vice cops alike. When Backpage was still active, the federal government praised it in detail for assisting law enforcement in identifying sex traffickers and other criminals. In 2021, the Government Accountability Office (GAO) concluded in a report that the FBI's ability to identify victims and sex traffickers has decreased significantly because, "with backpage.com no longer in the market, buyers and sellers moved to other online platforms, and the market became fragmented."

All of this heavy-handed prohibitionism has come in the name of fighting underage sex-trafficking, yet literally none of the criminal charges against Backpage during these many years has had anything to do with the stuff. In fact, the unsubstantiated accusation that the company was a party to sex trafficking is why the first federal case was declared a mistrial in 2021—prosecutors couldn't stop using the phrase.

Mike Lacey and the late Jim Larkin, with nearly a half-century between them fighting free speech battles against intrusive politicians, both insisted from the outset of their legal odyssey that the Backpage prosecutions were an attack on the First Amendment. Yet this case, and the lives prosecutors have wrecked, has received scant national attention from journalists and free speech advocates. Decades ago, gleeful smut-peddlers like Larry Flynt were hailed as First Amendment heroes and given the Hollywood biopic treatment; these days, the mere act of publishing sex ads online is enough to send most potential free speech allies scurrying for the exits. Lacey and Larkin deserved more from us, and the government deserves to do much less.

Music Credits: "Blue Beings" by Tamuz Dekel via Artlist; "Im on Your Side" by IamDayLight via Artlist

Photos Credits: Jose Luis Villegas/ZUMA Press/Newscom; Hector Amezcua/ZUMA Press/Newscom; Joel Lerner / Xinhua News Agency/Newscom; US House TV via CNP/picture alliance / Consolidated News Photos/Newscom; Associated Press

• Video Editor: Justin Zuckerman
• Graphics: Adani Samat
• Graphics : Paul Detrick