What if I were to tell you that, regardless of the First Amendment, U.S. Justice Department prosecutors may soon be able to declare illegal all or part of an interactive website, jerk that site from the Internet, charge the site and its owners and ex-owners with crimes related to content posted by others, and seize all of the accused’s assets, thereby imperiling the chances of an adequate defense?
That’s already occurred in the case of the onetime online listings giant Backpage.com, which the FBI seized in April 2018 in what is one of the most outrageous examples of direct government censorship in modern American history.
Based on an unusual theory of vicarious liability, government prosecutors allege that Backpage’s former owners, alternative weekly icons Michael Lacey and Jim Larkin, and four co-defendants, are responsible for illegal acts allegedly committed in connection with listings posted to the site by its users.
As a result, Lacey and Larkin have been charged with 100 counts of conspiracy, facilitating prostitution in violation of the U.S. Travel Act, and money laundering. The government claims it doesn’t have to show that the two men, who sold the company in 2015, saw or knew about any of the ads in question, knew any of the persons involved, or were aware of any illicit transactions related to those ads.
Instead, the government claims that the accused were “generally aware” the ads were solicitations for prostitution, and insists that’s enough to send Lacey and Larkin, now in their 70s, away for the rest of their lives.
The peril here should be chilling to anyone who publishes, online or otherwise. If the government convicts Lacey and Larkin, they could go after Facebook, Twitter or smaller outlets simply by saying that some of their content had been illegal and they knew about it.
Sound unlikely? Keep in mind, The New York Times recently reported that Facebook accounted for “over 90 percent of the imagery flagged by tech companies last year” for child sexual abuse imagery, the company’s best efforts to combat this scourge aside.
Facebook may seem too big to fail, but consider that Backpage had a foothold in nearly 100 cities worldwide, with millions of listings for everything from kitchen appliances to rooms for rent. And yet, the government made Backpage disappear overnight, with little more than the snap of some desk-jockey’s grubby fingers.
In addition to more prosaic interests, Backpage’s users were able to seek romance through a dating section, as well as post ads for adult services, such as for escorts, strippers, phone sex, erotic massage, etc., all of which are legal in this country.
Backpage forbade direct references of sex for money, and like many interactive sites, it employed a combination of computer and human moderation. Backpage also cooperated with law enforcement to such an extent that then-FBI Director Robert Mueller gave it an award for its efforts. The site also regularly reported ads suspected of involving minors to the National Center for Missing and Exploited Children (NCMEC).
But all that—the moderation, the cooperation with law enforcement, the reporting of suspect ads—has been turned on its head and is being used by prosecutors to bolster their claim that Lacey and Larkin, et al., were aware that some adult ads on the site were linked to illicit sex.
Full disclosure: I wrote for Lacey and Larkin for 14 years as a columnist and reporter at the Phoenix New Times. I now write for FrontPageConfidential.com, a website they started in 2017, which is devoted to following issues related to freedom of speech, including those regarding their court case.
I’m an admirer of both men and their commitment to journalism. In 2005, Lacey summed up his philosophy of the profession for a profile in New York magazine.
“The idea is not to let politicians get away with shit,” he said. “Our papers have butt-violated every goddamn politician who ever came down the pike! The ones who deserved it. As a journalist, if you don’t get up in the morning and say ‘fuck you’ to someone, why even do it?”
Needless to say, that attitude doesn’t win you friends. No wonder Lacey and Larkin have been hounded by law enforcement since they founded the Phoenix New Times in 1970 in response to the Vietnam War and the tragedy at Kent State.
In the beginning, the two college dropouts sold blood and waited tables to get the business going. Over time, they expanded it into a powerful chain of papers that valued investigative reporting and writerly, magazine-style journalism.
Before their current battle with the federal government, their most famous affray was with Arizona’s racist Sheriff Joe Arpaio, who in 2007 illegally jailed both men for co-authoring a cover story exposing a state grand jury looking to indict the paper. The backlash was immense, and the case was dropped. Lacey and Larkin sued, ultimately scoring a $3.75 million settlement, which they donated to various local Latino-rights groups.
Lacey and Larkin’s papers won more than 3800 awards for writing and journalism, including a Pulitzer. Working for them was like having a license to kick tuchis and take names. And if you didn’t use it, you were soon shown the door.
That tradition was sustained via non-traditional revenue streams.
Daily papers could shun ads for strip clubs, massage parlors and head shops, but Lacey and Larkin welcomed them and used them to finance decades of award-winning journalism.
In the late-1990s, along came Craigslist, which gobbled up the classifieds market, leaving the print industry reeling. In response, Lacey and Larkin created Backpage, attempting to recoup some of that lost income.
A coalition of state Attorneys General and non-profits pressured Craigslist to ditch its adult-services section, in part by conflating lawful adult services with prostitution, and consensual adult sex work with coerced prostitution, aka, sex trafficking.
In a repeat of the porn wars of the 1980s, these Bradbury-esque firemen used the specter of child sexual exploitation to push the eradication of all adult listings. They sought to justify their Fahrenheit 451-like approach by arguing that if ads for illicit services couldn’t be distinguished from ads for lawful adult services, there should be none of the latter, a position contrary to the First Amendment.
Craigslist gave up its adult services section in 2010, while Backpage remained defiant, winning court battles and overthrowing state laws, relying on a combination of the First Amendment and Section 230, the law that holds websites harmless for much of the content posted by third parties.
The feds weren’t amused, even less so when Lacey and Larkin showed up to a U.S. Senate hearing and invoked their rights under the Fifth and First Amendments to tell the Senators to take a hike.
At that point, the posse was mounted and ready, the entire effort led by Lacey and Larkin’s longtime enemies, Sen. John McCain and his wife Cindy.
It would take a book to fully explain the feud between the McCains and Lacey and Larkin. Suffice it to say that New Times’ reporters dogged the Senator throughout his career, and exposed Cindy in the 1990s for swiping opioids from a medical non-profit she ran to feed her addiction.
The feds, however, have gotten more than they bargained for in Lacey and Larkin. Though the government has possession of their bank accounts, has placed liens on all their properties, and even confiscated personal effects as “evidence of wealth,” they refuse to bend.
Their trial is currently scheduled for May 5 and Lacey and Larkin are contesting the government’s attorneys at every step. Recently, almost all of liberal media, from The Nation to The New York Times, rightly denounced the Brazilian government for apparently falsely charging American journalist Glenn Greenwald for cybercrimes, accusations that seek to hold Greenwald culpable for the alleged illegal acts of others, a parallel to the charges against Lacey and Larkin.
But so far, only WIRED and Reason Magazine have called into question the U.S. government’s actions in regard to Lacey and Larkin. Otherwise, the media has swallowed the government’s rationalizations and accusations regarding Backpage.
—Stephen Lemons is a freelance writer working for Front Page Confidential and various other outlets. His views are his own, and he does not speak for the defendants. Read more of his work at StephenLemons76.com.