Over the years, we’ve criticized the vendetta the United States has waged against whistleblower Julian Assange, most recently in this article. As matters now stand, Assange, the founder of WikiLeaks, remains marooned in a British prison cell awaiting extradition to the United States to face espionage charges.
But Assange is hardly the only journalist in the crosshairs of Big Brother. Closer to home, the federal government has spent more than a decade trying to imprison the founders of the now-shuttered website Backpage.com for the rest of their lives. One of the defendants, Jim Larkin, died by his own hand on July 31.
Larkin’s longtime business partner, Michael Lacey, as well as four Backpage executives and employees, still face charges that the website facilitated a variety of federal crimes related to prostitution by accepting classified ads for escort and massage services. Prosecutors have offered all the defendants the opportunity to plead guilty in exchange for maximum five-year sentences. All of them have publicly rejected the offer.
The trial (actually retrial, as we’ll describe momentarily) began last week.
To get an idea of the tactics Uncle Sam is using to win its case, a few points are illustrative. In a pretrial motion, the US Attorney’s Office for Arizona asked the federal judge presiding over the case, Diane Humetewa, to forbid any mention of the First Amendment or free speech in the trial now underway. To allow the defense to do so, would “confuse the issues, mislead the jury, and waste time—by making inapplicable legal arguments,” the motion states.
Judge Diane Humetewa largely rejected those demands but agreed to modify her jury instructions to restrict the jury from considering a First Amendment defense to the charges against the defendants. Humetewa also dismissed a motion from prosecutors that would have prohibited the defense from arguing that the adult-oriented ads that were posted on Backpage were actually legal.
But she forbade the defendants from testifying that they relied on legal advice in operating Backpage. Nor can they mention Section 230 of the Communications Decency Act, which generally provides that interactive websites are not to be held liable for libel, slander or similar wrongful conduct posted by users.
That’s despite the fact that in numerous other cases brought in state and federal courts, Backpage has prevailed on both First Amendment and Section 230 grounds. There’s a list of the cases they won at this link.
You could be forgiven for wondering why Uncle Sam has it in for Backpage. In particular, why wasn’t its much larger competitor Craigslist, which at one time also ran ads for escort and massage services, also indicted?
One possible explanation is the background of the main defendants, Larkin and Lacey. Over the years, they made powerful enemies. And now it’s payback time.
In 1970, the duo created an alternative newspaper they operated for nearly 40 years – the Phoenix New Times. Their investigative targets included former Maricopa County (Arizona) Sheriff Joe Arpaio, former Arizona Senator John McCain, Walmart, and the Church of Scientology.
During Arpaio’s decades-long reign as sheriff, New Times revealed numerous examples of unlawful conduct. Arpaio was so incensed that in 2007, he ordered the arrest of Larkin and Lacy for revealing that the newspaper was the target of a grand jury investigation. But they sued Arpaio for false arrest and eventually won a $3.75 million settlement.
New Times also skewered John McCain and his beer heiress wife Cindy. After McCain was investigated in 1989 for his ties to convicted felon Charles Keating, New Times referred to him as a “sociopath.” Its reporters also questioned McCain’s status as a war hero and revealed unethical actions he had taken on behalf of campaign donors.
Cindy McCain wasn’t spared, either. In 1994, New Times revealed that she was addicted to prescription painkillers that she stole from a medical-aid charity she headed up. And in 2000, its reporters dug into the roots of her fortune, in an investigation entitled “Haunted by Spirits.”
New Times became so successful that it took over numerous local news organizations and eventually purchased The Village Voice, the most famous alternative news organization of all. And its fearless journalism won more than 1,400 national press awards, including the Pulitzer Prize.
Then in 2004, Larkin and Lacey started Backpage as competition to the wildly successful Craigslist. From the outset, Backpage ran classified ads for escort and massage services. But it cooperated with law enforcement to enforce laws against sex trafficking. The company even hired a board member from the National Center for Missing and Exploited Children (NCMEC) to help them build systems into Backpage to prevent it being used for this purpose.
In a previous investigation of Backpage ending in 2013, the Department of Justice (DOJ) concluded that the company was “remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations.” It found that “Backpage genuinely wanted to get child prostitution off of its site.” DOJ investigators even suggested that bringing criminal charges against Backpage would be unwise.
However, in the current trial, the Backpage defense team is forbidden from mentioning the results or even the existence of this investigation.
In April 2018, the FBI seized Backpage and arrested the defendants now in their second trial. The press release announcing the arrests proclaimed that Backpage was “the dominant marketplace for illicit commercial sex, a place where sex traffickers frequently advertised children and adults alike.” Backpage was alleged to have “exploited human beings for profit,” the release claimed, “facilitated sex trafficking,” and victimized “thousands of women and children.”
And just before being arrested at gunpoint in SWAT-style raids, prosecutors seized nearly all the personal assets owned by Lacey and Larkin. The seizures included millions of dollars they had owned before forming Backpage, along with more than $10 million in their attorneys’ trust accounts.
This tactic is perfectly legal under federal law. Indeed, the Supreme Court blessed this prosecutorial strategy in 1989.
In 2021, the first trial of Lacey, Larkin, and their co-defendants began. But it didn’t go well for the prosecution. One of its key witnesses, an employee of the California Attorney General’s office, admitted in cross-examination that the escort ads he had seen on Backpage were legal. And despite being warned against doing so, prosecutors repeatedly tried to tie the defendants to crimes for which they had not been charged; namely, sex trafficking and child sex trafficking.
After three days, the presiding judge, Susan Brnovich, had heard enough. She d target=”_blank”eclared a mistrial as a result of prosecutorial misconduct.
Now it’s happening again.
If nothing else, the Backpage saga again demonstrates that when a social problem emerges into prominence – in this case, child sexual abuse – politicians and their handmaiden law enforcement agencies will go into overdrive to find a scapegoat. Here, journalists who helped finance their newspapers with classified advertising were that scapegoat.
Next time, it might be you.
