United States v. Larkin

January 28, 2020 • Legal Briefs
By Jessica Ring Amunson, Tassity Johnson, and Trevor Burrus

Backpage was a website that allowed third‐​party users to post classified ads. Unsurprisingly, advertisements for adult services made up a portion of these posts—adult content tends to end up on websites that don’t have strict content guidelines. Although the site allowed adult content, Backpage was instrumental in reporting criminal activities to law enforcement over the years. Recently, memos have emerged written by federal prosecutors who described how “unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations.” The memos describe how Backpage was “very cooperative at removing these advertisements at law enforcement’s request,” and how “even without a subpoena, in exigent circumstances such as a child rescue situation, Backpage will provide the maximum information and assistance permitted under the law.”

Apparently, that did not buy the site enough good will with Uncle Sam. The website endured a campaign of persecution by government officials around the country, culminating in federal agents raiding the homes of Michael Lacey and James Larkin, the founders of Backpage. The two were subsequently indicted for facilitating prostitution and conspiracy, even though they never communicated with anyone in a prostitution ring. Lacey and Larkin spent over a week in jail before finally being released on bond. The government has frozen their assets and is attempting to seize what little they have left.

While some of the ads on the site may have been outside of constitutional protection, the Supreme Court has held that the government must prove, not merely assume, that speech is unprotected. For example, in a case called Fort Wayne Books v. Indiana, prosecutors brought a civil racketeering complaint against Fort Wayne Books and two other book and video stores allegedly selling obscene materials. Based on the governments unchallenged assertion, everything in the stores was seized, including books, videos, and the proceeds from the sale of books and videos. The Supreme Court overturned the seizure because there are “special rules applicable to removing First Amendment materials from circulation” and therefore the books and films could not be seized until they were first adjudged to be obscene and unprotected by the First Amendment. Mere “probable cause to believe a legal violation ha[d] transpired” was “not adequate.”

Moreover, here the government went further and confiscated millions of dollars of proceeds not only from Backpage, but also from Lacey and Larkin’s numerous other publishing ventures—ventures completely unrelated to the alleged criminal activity of the website and indisputably protected by the First Amendment. And the government did so on nothing more than its say‐​so that the publication from which the proceeds were earned is not protected by the First Amendment. Absent any meaningful judicial check on the government, nothing can stop it from going after other publishers—of websites, or anything else—that it deems unworthy of First Amendment protection by seizing their proceeds.

In the Backpage case, the government ignored Fort Wayne Books and other Supreme Court precedents, seizing from Lacey and Larkin publishing proceeds that are presumptively protected by the First Amendment. The district court allowed the seizures to stand because the defendants didn’t show that the publishing proceeds “merit[ed] special protection under the First Amendment.” (Cato also filed a brief in the district court). But the district court got the law exactly backwards. Proving that the publishing proceeds are not protected by the First Amendment through an adversarial hearing is what the government must do, before it is entitled to take them.

Now at the Ninth Circuit, Cato has again joined The DKT Liberty Project and Reason Foundation in filing an amicus brief in support of Backpage’s founders, asking the court to vacate the seizures of the defendant’s assets. Here, the government has attempted to thwart the protections granted under the First Amendment in order to more easily obtain an indictment. The federal government has a legitimate interest in enforcing federal law, and stopping human trafficking is an admirable goal. However, the government does not need to trample on constitutional protections to achieve that end, nor should it.