Judge Tosses Out Many Of The Remaining Charges Against Backpage’s Michael Lacey

When it comes to Backpage.com, the truth has been buried beneath a mountain of political grandstanding and legal theatrics.

There’s the public narrative about Backpage.com, and then there’s the real story. We’ve discussed this before, but if you’re not familiar with the details, you might think that Backpage was a huge sex trafficking operation that somehow dodged law enforcement for years. It was, the story goes, only finally taken down in 2018 thanks to the passage of a new law, FOSTA.

The problem is literally all of that is wrong. Backpage actually worked hard to stop trafficking on its site, including working with law enforcement to bring traffickers to justice. This went so far that the DOJ talked about what a good partner Backpage was. Indeed, so frequently lost in all of this is that, while everyone agrees how problematic sex trafficking can be, Backpage was actually helping law enforcement attack that problem. And (eventually) got punished for it.

A bunch of politicians really, really wanted Backpage’s head on a pike, led by now Vice President Kamala Harris, but plenty of others joined in as well (both Democrat and Republican). Harris had tried to bring charges against the site while she was California’s Attorney General, which failed.

Eventually, the company and its execs faced federal charges, and the feds seized the entire site. The timing of the arrests and seizure were weird. For months, politicians had been pushing a new law, FOSTA, where basically all of the language in support of the bill was about how it was needed to take down Backpage. You would think that its only purpose was to stop Backpage, if you listened to the politicians pushing the law.

But the feds seized Backpage and arrested its execs under existing legal authorities, not FOSTA, which had not even been signed into law at the time of the arrests (it had passed Congress, though, and just awaited a presidential signature).

Since then, the DOJ has seemed entirely focused on litigating the entire case as if the false narrative was true — and to do whatever possible to block the arrested executives from presenting the actual story. It’s almost as if they recognize they fucked up, but refuse to admit it. This included suppressing exculpatory evidence and trying to block the execs from using some pretty important defenses around the First Amendment.

The first trial of the execs ended in a mistrial after the DOJ couldn’t stay away from lying and claiming that the execs were involved in child sex trafficking. The judge had already made it clear to them that the case had nothing to do with child sex trafficking (it had been cut back to dealing with just a few examples of prostitution ads).

Instead of leaving it alone, the DOJ strung things out and had a second trial (even after Jim Larkin, one of the execs, took his own life days before the trial was set to start). That didn’t go well either. A jury only found the other main exec, Michael Lacey, guilty of one single (questionable) charge of money laundering, acquitted him on another charge, and couldn’t agree on dozens of other charges. In other words, on their second shot at it, they still were unable to get Lacey on any prostitution or sex trafficking claims.

Again, the DOJ could just leave it alone, but earlier this year announced that they intended to try Lacey for the third time later this year.

And, already, it’s not going well. Last week, as first reported by Elizabeth Nolan Brown, the judge tossed out 53 of the 84 remaining counts. In the process, the judge notes just how tenuous the evidence presented has been:

With regard to Mr. Lacey, the Court finds there is an insufficiency of trial evidence supporting a direct theory of liability for any of the Travel Act charges brought against him. Specifically, the Government did not put forth sufficient evidence of Mr. Lacey’s specific intent to facilitate the promotion of the posters or prostitution businesses comprising Counts 2 through 51, as that mens rea is defined by the Ninth Circuit. Though the Government put forth some evidence that Mr. Lacey had knowledge that Backpage’s Adult section evolved into an on-line prostitution advertising platform operating in states that outlaw prostitution and that he extraordinarily benefited financially therefrom, there was no evidence that he was involved with developing or overseeing Backpage’s moderation or aggregation practices for the ads in Counts 2–51.

He still faces trial on the remaining counts (and sentencing of the one count he was found guilty of last year).

The longer this case goes on, the worse everyone pushing for it has looked from all of the politicians, to the media and activist groups who supported this whole process.

But, of course, there will be no consequences for any of them.

In the end, the prosecution of Backpage.com and its executives stands as a cautionary tale about the dangers of moral panic and political grandstanding. It’s a story of how easily the truth can be obscured when those in power are more interested in scoring points than seeking justice. And it’s a reminder of how vital it is that we, as a society, remain vigilant against these abuses. Because if we don’t, this kind of thing is going to happen again and again.