Backpage protection begins its case-in-chief

Defendants within the federal trial in opposition to former executives and
staff of started presenting their case-in-chief Tuesday
morning, signifying a tough halfway level within the projected three-month

Earlier than the trial resumed at 1 p.m., the choose made
a number of rulings regarding testimony as to defendants’ intentions,
understanding of the regulation and reliance on authorized recommendation.  

Michael Lacey, two former executives and two former staff of the
categorized promoting web site earlier than its 2018 seizure by the FBI have
sat by 23 days of trial up to now, listening as federal prosecutors accuse
them of violating the Journey Act, a federal regulation that criminalizes the
use of interstate commerce with intent to interrupt state stage legal guidelines.
Prosecutors say defendants violated the act through the use of Backpage to
facilitate prostitution advertisements disguised as escort and different authorized grownup

The protection’s first witness, a former commander of the
Minneapolis Police Division with expertise in investigating
prostitution and intercourse trafficking, echoed a lot of the earlier testimony
given by different officers up to now.

He mentioned the content material of the advertisements
posted on Backpage usually weren’t blatant sufficient to assist a
prostitution arrest however somewhat had been a “place to begin” for
investigations — although he recognized the positioning as a supply of
trafficking and prostitution. 

Backpage’s protection staff insists
that the First Modification immunizes the web site as a number of free speech.
However a number of judges within the case have dominated that the First Modification
isn’t an absolute protection, as a result of facilitating prostitution is
unprotected speech. 

U.S. District Choose Diane Humetewa, a Barack
Obama appointee and the fourth trial choose within the case up to now, clarified
Tuesday that defendants can inform the jury they relied on statements
from founders Lacey and James Larkin, and former CEO Carl Ferrer,
claiming their actions had been protected by the First Modification. However they
can’t say these statements stemmed from direct authorized recommendation given by

That’s as a result of they haven’t reached the authorized customary
for reliance on recommendation of counsel. To be able to use that as a protection,
defendants should present a whole disclosure of truth to a specified
lawyer, a selected query of regulation requested of that lawyer, that the
lawyer mentioned their actions had been authorized, and that defendants relied on
that reply in good religion.

Humetewa supplied the protection extra time to show these components earlier than utilizing such testimony. 

Lincenberg, representing former Backpage Chief Monetary Officer John
Brunst, complained that Brunst’s reliance on the First Modification gained’t
maintain water until the jury is aware of that opinion got here solely after
“innumerable conversions with counsel.”

Protection counsel requested but once more to permit testimony as to the defendant’s reliance on Part 230
of the Communications Decency Act, which removes civil and state-level
felony legal responsibility from web service suppliers for any unlawful
actions on their website. Humetewa refused, as she has quite a few occasions
earlier than. 

“The CDA just isn’t related right here,” she mentioned. “We’d go down a rabbit gap of irrelevant testimony that may result in confusion.”

District Choose Susan Brnovich, a Donald Trump appointee who declared a
mistrial within the case in 2021, dominated out Part 230 as a protection as a result of
it doesn’t apply to federal crimes. However to show the federal Journey Act
violation, prosecutors should show preliminary intent to interrupt state legal guidelines,
begging the query of whether or not the part might be used to fight
accusations of intent. 

Bob Corn-Revere, the chief counsel to the
Basis for Particular person Rights and Expression who represented Backpage
earlier than it was seized, informed Courthouse Information that the state-level
immunity offered by the part might lengthen solely to precise state
violations, and to not the query of intent underneath a Journey Act

In an interview with Courthouse Information, Arizona State professor and First Modification Clinic director Gregg Leslie concurred. 

might be that should you’re alleging a state crime was dedicated you do not
have to really prosecute it, so these defenses gained’t come up,” he

Brnovich additionally dominated that the part doesn’t apply
as a result of the actions defendants are accused of — recruiting pimps and
prostitutes to promote on Backpage — transcend the scope of Part
230’s moderation protections.

However Corn-Revere mentioned that’s for the jury to determine, not the choose.

complete case is in regards to the authorities assuming its conclusions,” he mentioned.
“That’s the query to be determined. Not the query to be determined by
the choose after which informed you’ll be able to’t speak about it.”

Whether or not Brnovich appropriately excluded it on these grounds, it might nonetheless be excluded on others.

modification to Part 230 made in 2018 with the passing of the Combat
On-line Intercourse Trafficking Act carved out an exception for facilitation of
prostitution, saying the part doesn’t immunize that offense from state prosecutions.
If Part 230 can be utilized to fight the underlying state-level
accusations in a Journey Act cost, facilitation of prostitution would
be excluded from that safety. 

The fees defendants face stem from earlier than that modification.

The protection motioned Friday for a Rule 29 judgment of acquittal,
during which Humetewa can rule on any offense for which she discovered the
authorities’s proof to be inadequate. She reserved her ruling on the
matter Tuesday morning, not indicating when or if she is going to rule.