United States v. Lacey et al: Digital free speech is at risk

United States of America,

Plaintiff-Appellee,

v.

Michael Lacey, Scott Spear, and John (“Jed”) Brunst,

Defendants-Appellants.

Introduction

This case is the culmination of a years-long campaign to censor online classified adult advertising. Government officials, including state attorneys general and ultimately the federal government, joined by various advocacy groups and others, made demands to shut down online adult advertising based on blanket assertions that all ads for escort services or sex work are necessarily ads for prostitution, and publishers that permit such ads should face criminal or civil liability merely for providing a platform.

But these campaigns ran headlong into well-established First Amendment principles. A series of cases, most involving Backpage.com, established that the First Amendment protects publication of adult classified ads, the government cannot presume escort ads are ads for illegal conduct, and, most pertinent here, the government cannot hold publishers responsible for third-party ads posted by others absent knowledge of the specific posters’ criminal purpose and specific intent to assist them.

The prosecution in this case proceeded not by addressing and overcoming these constitutional barriers but by evading them. The Government’s strategy was to obscure the constitutional issues and prevent the jury from considering the Government’s allegations in light of controlling First Amendment principles. The district court acquiesced in this approach. It gave the Government wide latitude to put into evidence its cooperating witnesses’ opinions and guesses that all adult ads are for prostitution. It allowed the Government to use public accusations against Backpage.com in the guise of “notice” evidence. At the same time, the court prevented Defendants from introducing key information in their defense—in particular any mention of the cases upholding Backpage.com’s established First Amendment rights and Defendants’ good faith in following the law. Ultimately, the court allowed the Government to argue its theory without making any showing that any Defendant ever even saw any given ad, much less did anything to facilitate or promote a business venture of prostitution related to any of the charged ads.

The district court’s deeply flawed handling of this case presents profound threats for speech and the Internet. No court has ever before allowed the novel theory of vicarious liability for third-party speech that the Government advanced and the district court permitted here. If allowed to stand, the district court’s rulings would serve as a wide-ranging blueprint for online censorship. Publishers and intermediaries across the Internet would face the threat of criminal liability contrary to bedrock First Amendment law.

Full Brief: ‘United States v. Lacey et al’

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