DOJ Asks Judge To Block Backpage From Talking About Legal Ads, First Amendment, Section 230

The DOJ must not have much confidence in its case against Backpage executives Michael Lacey and James Larkin. This prosecution is now more than a half-decade old and the government still hasn’t found a way to lock up the many Backpage employees and founders it arrested.

The Backpage site was seized in 2018. This followed years of selective prosecution all over the nation — none of which had resulted in criminal or civil charges sticking against the supposed haven for sex traffickers. Three years after that, the trial finally started, with the DOJ arguing (often without using these exact words) that Backpage not only knew sex trafficking was happening via the site, but aided and abetted this criminal act.

Ignored by the DOJ was the fact that law enforcement viewed Backpage as a valuable tool for tracking down sex traffickers. It also ignored the help Backpage had directly provided to investigators hoping to locate traffickers and their victims.

The DOJ managed to talk itself into a mistrial less than a week after the trial commenced. The judge hit the reset on the prosecution after DOJ prosecutors ignored her warning to stop focusing on the specifics of the alleged sex trafficking.

Before the trial, the judge concluded she would allow evidence showing that people were trafficked using the site, but would not allow prosecutors to linger on the details of the abuse suffered by victims.

“It seemed the government abused that leeway,” Brnovich said. The judge said one government witness testified about being raped more than once, which raises a “whole new emotional response from people.”

The DOJ can’t seem to keep itself from talking about stuff a judge told it to stop talking about. So, it’s pretty rich the DOJ thinks the judge should prevent Backpage and its legal team from talking about all sorts of things that seem very relevant to their defense. Elizabeth Nolan Brown has the details (and a ton of court documents) at Reason.

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.

The DOJ is unwilling to participate in a fair fight. It has already shown it will ignore the court’s orders when it presents its side. And now it wants to prevent Backpage from discussing anything that might weaken the government’s case.

The First Amendment tops the list of subjects the DOJ wants to forbid from making a court appearance. But that’s only one of the DOJ’s motions. There’s a whole lot more the DOJ feels Backpage should just shut up about.

A flurry of filed motions suggest Backpage should do nothing more than sit quietly and allow the DOJ to talk its founders into prison. One motion says the defendants shouldn’t be allowed to make any statements about “the legality or illegality of any advertisement.” Another says Backpage should be forbidden from referencing Section 230 of the CDA whatsoever. The argument there is that this immunity does not apply to federal criminal prosecutions. But that conveniently ignores the value it has for Backpage, which could use it to illustrate that it’s being prosecuted for content contributed by third parties, despite the fact that it could not be sued over this very same content.

Yet another motion asks that Lacey, Larkin, and other Backpage employees be blocked from mentioning their actions were guided by their legal team, which had assured them their business model did not violate the law. This is the government asking the court to tie Backpage’s hands, allowing it to make unchallenged allegations about criminal intent.

And, ironically, the government wants the Backpage legal team blocked from mentioning the DOJ’s spectacular one-week flameout during its first prosecutorial attempt. The government expects the defendants to abide by a laundry list of court-imposed restrictions when it previously demonstrated it couldn’t be bothered to comply with a single request by the presiding judge.

The DOJ has been criticized for its trial by ambush tactics before. This isn’t an ambush, though. This is the government tacitly agreeing to a fair fight and then asking the impartial observer to strip its opponents of all of its weapons before the fight begins. This is complete bullshit. Hopefully, the judge will toss these just as quickly as the DOJ filed them. If the DOJ wants to use its considerable power to punish people for things other people did, the least it can do is allow those it’s trying to punish to fully defend themselves.