PHOENIX (CN) — Defendants in the federal trial against former executives and employees of Backpage.com began presenting their case-in-chief Tuesday morning, signifying a rough midway point in the projected three-month proceeding.
Before the trial resumed at 1 p.m., the judge made multiple rulings concerning testimony as to defendants’ intentions, understanding of the law and reliance on legal advice.
Founder Michael Lacey, two former executives and two former employees of the classified advertising website before its 2018 seizure by the FBI have sat through 23 days of trial so far, listening as federal prosecutors accuse them of violating the Travel Act, a federal law that criminalizes the use of interstate commerce with intent to break state level laws. Prosecutors say defendants violated the act by using Backpage to facilitate prostitution ads disguised as escort and other legal adult services.
The defense’s first witness, a former commander of the Minneapolis Police Department with experience in investigating prostitution and sex trafficking, echoed much of the previous testimony given by other officers so far.
He said the content of the ads posted on Backpage typically weren’t blatant enough to support a prostitution arrest but rather were a “starting point” for investigations — though he identified the site as a source of trafficking and prostitution.
Backpage’s defense team insists that the First Amendment immunizes the website as a host of free speech. But multiple judges in the case have ruled that the First Amendment isn’t an absolute defense, because facilitating prostitution is unprotected speech.
U.S. District Judge Diane Humetewa, a Barack Obama appointee and the fourth trial judge in the case so far, clarified Tuesday that defendants can tell the jury they relied on statements from founders Lacey and James Larkin, and former CEO Carl Ferrer, claiming their actions were protected by the First Amendment. But they can’t say those statements stemmed from direct legal advice given by attorneys.
That’s because they haven’t reached the legal standard for reliance on advice of counsel. In order to use that as a defense, defendants must show a complete disclosure of fact to a specified attorney, a specific question of law asked of that attorney, that the attorney said their actions were legal, and that defendants relied on that answer in good faith.
Humetewa offered the defense more time to prove those factors before using such testimony.
Gary Lincenberg, representing former Backpage Chief Financial Officer John Brunst, complained that Brunst’s reliance on the First Amendment won’t hold water unless the jury knows that opinion came only after “innumerable conversions with counsel.”
Defense counsel asked yet again to allow testimony as to the defendant's reliance on Section 230 of the Communications Decency Act, which removes civil and state-level criminal liability from internet service providers for any illegal actions on their site. Humetewa refused, as she has numerous times before.
“The CDA is not relevant here,” she said. “We’d go down a rabbit hole of irrelevant testimony that would lead to confusion.”
U.S. District Judge Susan Brnovich, a Donald Trump appointee who declared a mistrial in the case in 2021, ruled out Section 230 as a defense because it doesn’t apply to federal crimes. But to prove the federal Travel Act violation, prosecutors must prove initial intent to break state laws, begging the question of whether the section could be used to combat accusations of intent.
Bob Corn-Revere, the chief counsel to the Foundation for Individual Rights and Expression who represented Backpage before it was seized, told Courthouse News that the state-level immunity provided by the section may extend only to actual state violations, and not to the question of intent under a Travel Act violation.
In an interview with Courthouse News, Arizona State professor and First Amendment Clinic director Gregg Leslie concurred.
“It could be that if you’re alleging a state crime was committed you don't have to actually prosecute it, so those defenses won’t come up,” he guessed.
Brnovich also ruled that the section doesn’t apply because the actions defendants are accused of — recruiting pimps and prostitutes to advertise on Backpage — go beyond the scope of Section 230’s moderation protections.
But Corn-Revere said that’s for the jury to decide, not the judge.
“This whole case is about the government assuming its conclusions,” he said. “That is the question to be decided. Not the question to be decided by the judge and then told you can’t talk about it.”
Whether Brnovich correctly excluded it on those grounds, it may still be excluded on others.
An amendment to Section 230 made in 2018 with the passing of the Fight Online Sex Trafficking Act carved out an exception for facilitation of prostitution, saying the section doesn’t immunize that offense from state prosecutions. If Section 230 can be used to combat the underlying state-level accusations in a Travel Act charge, facilitation of prostitution would be excluded from that protection.
The charges defendants face stem from before that amendment.
The defense motioned Friday for a Rule 29 judgment of acquittal, in which Humetewa can rule on any offense for which she found the government’s evidence to be insufficient. She reserved her ruling on the matter Tuesday morning, not indicating when or if she will rule.
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