EXHIBIT B

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The government’s lengthy, and erroneous, exposition on the First Amendment in 

response to Defendants’ proposed jury instructions (Dkt. 1216-3 at 159-201) suffers from 

a fundamental and fatal flaw—the government cherry-picks sentences from cases 

involving facially unlawful speech (which is not protected by the First Amendment) and 

erroneously applies that language to speech that is not facially unlawful (which is

presumptively protected by the First Amendment). The key takeaway from the Supreme 

Court and Ninth Circuit’s holdings on this issue is that, unless an advertisement expressly 

solicits prostitution, the advertisement does not lose its protection under the First 

Amendment just because it might relate to prostitution. In effect, the government asks 

the Court (and the jury) to presume the illegality of the advertisements at issue without 

first proving that to be the case. Further, the government’s burden of proof is heightened 

where, as here, it seeks to hold Defendants responsible for the speech of third parties. 

Where third-party speech is involved, the government must prove that the publishers 

specifically intended to facilitate the allegedly unlawful speech.

In short, the government asks this Court to turn the First Amendment on its head 

and relieve the government of its obligation to prove that the speech at issue in this case 

is unprotected. The Court should reject the government’s invitation to endorse this 

fundamental and reversible constitutional error. 

1. All Speech Is Presumed Protected by the First Amendment.

The government claims its mere allegation that speech on Backpage was 

unprotected is sufficient to dispense with the First Amendment, but that position is starkly 

at odds with the Ninth Circuit’s directive in Bursey v. United States:

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The Government’s argument takes as its premise the 

conclusion to be proved: The expressions and associational 

relationships in issue are not protected by the First 

Amendment. This argument implies that there is a 

presumption of nonprotection applied to the expressions and 

associations involved in this case and that the witnesses are 

obliged to overcome it before they can rely on the First 

Amendment. The Government has it backwards. All speech, 

press, and associational relationships are presumptively 

protected by the First Amendment; the burden rests on the 

Government to establish that the particular expressions or 

relationships are outside its reach.

Bursey v. United States, 466 F.2d 1059, 1082 (9th Cir. 1972) (emphasis added). See also

Bd. of Trs. v. State Univ. of N.J. v. Fox, 492 U.S. 469, 480 (1989) (“the State bears the 

burden of justifying its restrictions”).1

There are very few categories of speech that fall outside the protections of the First 

Amendment: obscenity, defamation, fraud, incitement, child pornography, and speech 

integral to criminal conduct. See United States v. Stevens, 559 U.S. 460, 468-69 (2010) 

(recognizing “limited” exceptions to the presumption of protection). Offensive speech is 

protected by the First Amendment. See Snyder v. Phelps, 562 U.S. 443, 458 (2011) 

(“speech cannot be restricted simply because it is upsetting or arouses contempt”). Hate 

speech is protected by the First Amendment. See R.A.V. v. City of St. Paul, 505 U.S. 377, 

396 (1992) (recognizing that “burning a cross in someone’s front yard,” however 

 

1 Contrary to the government’s claim, the defense does not contend the government must 

prove that every ad ever posted to Backpage.com was unlawful for some ads to be 

outside of the protection of the First Amendment. Rather, the First Amendment compels 

the Court and the jury to presume that every ad on Backpage.com was and is protected by 

the First Amendment until the government proves otherwise, with competent and 

admissible evidence, on an ad-by-ad basis. 

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“reprehensible,” is presumptive protected expression). Non-obscene “adult” speech is 

protected by the First Amendment. Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 

(2002) (“It is also well established that speech may not be prohibited because it concerns 

subjects offending our sensibilities . . . . In evaluating the free speech rights of adults, we 

have made it perfectly clear that ‘[s]exual expression which is indecent but not obscene is 

protected by the First Amendment’”) (citing Reno v. American Civil Liberties Union, 521 

U.S. 844, 874 (1997).

The speech at issue in this case—classified advertisements concerning adult 

services posted by third-party users of a website—does not fall into one of the “welldefined and narrowly limited classes” of speech outside of the protection of the First 

Amendment. Stevens, 559 U.S. at 469; accord Backpage.com, LLC v. Dart, 807 F.3d 

229, 234 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2016) (rejecting sheriff’s 

presumption that ads on Backpage.com were illegal: Backpage.com was “an avenue of 

expression of ideas and opinions” protected by the First Amendment, including its 

“classified ads for ‘adult’ service”). Moreover, and importantly, even if a third-party 

posting a Backpage ad had no protection from the First Amendment because he or she 

knew the ad involved unlawful conduct, that does not mean that Backpage.com’s 

publication of the ad was unprotected by the First Amendment. Backpage.com, LLC v. 

McKenna, 881 F. Supp. 2d 1262, 1281 (W.D. Wash. 2012) (“The third-party publication 

of offers to engage in illegal transactions does not fall within ‘well-defined and narrowly 

limited classes of speech’ that fall outside of First Amendment protection.”) (quoting 

Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)).

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2. Pittsburgh Press Involved Facially Unlawful Speech, and Its Holding Applies 

Only to Facially Unlawful Speech.

The government bases its response to Defendants’ proposed First Amendment jury 

instructions on Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels., 413 U.S. 376 

(1973).2

 The City of Pittsburgh prohibited by ordinance the publication of “help wanted” 

ads in sex-designated columns, except for jobs where an employer was permitted to hire 

on the basis of sex. Id. at 377-78. The Pittsburgh Commission on Human Relations held 

that Pittsburgh Press violated the ordinance by using an advertising system in its daily 

newspaper whereby employment opportunities were published under headings 

designating job preferences by sex (e.g., “‘Male Help Wanted,’ ‘Female Help Wanted,’ 

and ‘Male-Female Help Wanted’). Id. at 379. Those sex-designated categories were 

illegal under the City’s ordinance. Id. at 388-89.3

 As such, the Supreme Court held that 

“[a]ny First Amendment interest which might be served by advertising an ordinary 

commercial proposal . . . is altogether absent when the commercial activity itself is illegal 

 

2 The government also cites the Supreme Court’s decision in Central Hudson, but that 

decision merely cited to and briefly synopsized the holding of Pittsburgh Press—it did 

not interpret or extend its holding. Central Hudson Gas & Elec. Corp. v. Public Svc. 

Comm. of N.Y., 447 U.S. 557 (1980) (“The government may ban forms of 

communication more likely to deceive the public than to inform it, Friedman v. 

Rogers, supra, at 13, 15–16, 99 S.Ct., at 896, 897; Ohralik v. Ohio State Bar Assn., 

supra, at 464–465,98 S. Ct., at 1923–1925, or commercial speech related to illegal 

activity, Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 388, 93 

S.Ct. 2553, 2560, 37 L.Ed.2d669 (1973)”).

3 Accord IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1122–23 (9th Cir. 2020) (“In 

Pittsburgh Press, the Supreme Court addressed a challenge to a city ordinance that 

prohibited discrimination on various bases, including sex. 413 U.S. at 378, 93 S.Ct. 

2553. To support that prohibition, the ordinance forbade the dissemination of 

advertisements that ‘indicate[d] any discrimination because of sex.’”) 

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and the restriction on advertising is incidental to a valid limitation on economic activity.” 

Id. at 389 (emphasis added).4

The Supreme Court’s holding in Pittsburgh Press goes no farther than saying that 

the First Amendment does not protect the publication of classified ads that are, on their 

face, per se unlawful—a want ad expressing a per se unlawful sex preference in 

employment, a want ad proposing a per se unlawful “sale of narcotics,” or a want ad 

“soliciting prostitutes,” which would be per se unlawful in most of the United States.5

Notably, the Supreme Court neither held nor suggested that a newspaper could be 

forbidden from publishing facially lawful help wanted ads, even if the employers posting 

those ads refused to hire women who responded to the ads. (i.e. the ads “related to” 

unlawful activity but did not, on their face, propose unlawful activity). Yet that is exactly 

how the government characterizes the holding of Pittsburgh Press (and Central Hudson), 

in seeking to eviscerate the First Amendment protection afforded to facially lawful adult 

 

4 The Backpage.com ads at issue in the indictment were dating ads, massage ads, and 

escort ads. None of those activities is illegal—and dating ads do not fall within the 

less-protected ambit of commercial speech.

5 The Supreme Court’s exact words were: “We have no doubt that a newspaper 

constitutionally could be forbidden to publish a want ad proposing a sale of narcotics 

or soliciting prostitutes. Nor would the result be different if the nature of the 

transaction were indicated by placement under columns captioned ‘Narcotics for Sale’ 

and ‘Prostitutes Wanted’ rather than stated within the four corners of the 

advertisement . . . . We hold only that the Commission’s modified order, narrowly 

drawn to prohibit placement in sex-designated columns of advertisements for 

nonexempt job opportunities, does not infringe the First Amendment rights of 

Pittsburgh Press.” Id. at 388, 391. The government’s position conflates a newspaper 

offering a classified ad category for “Prostitutes Wanted” (which would propose per 

se unlawful activity in most places) with a newspaper or website offering classified ad 

categories for dating, massages, or escorts (which propose unquestionably lawful 

activities).

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ads. That characterization is flawed and has been rejected repeatedly by the courts—

including by the Supreme Court and the Ninth Circuit. 

In Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 904 fn. 7 (9th Cir. 

2009), the Ninth Circuit narrowly construed the language, “related to unlawful activity,” 

in Central Hudson as meaning “whether the goods or services the party advertises are 

illegal”—not whether an advertisement for a lawful service was placed by someone who 

might be engaged in unlawful activity: 

Central Hudson asks if the commercial speech is ‘related to 

unlawful activity.’ Thus, in the context of advertising, one 

must ask whether the goods or services the party advertises 

are illegal.

(emphasis added; internal citations omitted). Four years later, in Valle Del Sol Inc. v. 

Whiting, 709 F.3d 808, 822 (9th Cir. 2013), the Ninth Circuit construed the holdings of 

Pittsburgh Press and Central Hudson in exactly the same manner: 

Central Hudson’s legality requirement [] has traditionally 

focused on the content of affected speech—i.e., whether the 

speech proposes an illegal transaction—instead of whether 

the speech is associated with unlawful activity.

(Emphasis added.)6 

 

6 Of the millions of adult ads that ran on Backpage.com, the government identified just 

one that directly proposed an illegal transaction. The other forty-nine charged ads the 

government merely claims to be “associated with unlawful activity.” 

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Just last year, the Ninth Circuit made the same point, more 

emphatically, directly rejecting the government’s proposed interpretation of 

Pittsburgh Press: 

Pittsburgh Press implicates only those instances when the 

state restricts speech that itself proposes an illegal 

transaction . . . . SAG’s interpretation of Pittsburgh Press

would require this court to permit the restriction not only of 

speech that proposes an illegal activity but also facially 

inoffensive speech that a third-party might use to facilitate its 

own illegal conduct. But as the Supreme Court has noted, ‘it 

would be quite remarkable to hold that speech by a lawabiding possessor of information can be suppressed in order 

to deter conduct by a non-law-abiding third party.’ Bartnicki 

v. Vopper, 532 U.S. 514, 529–30, 121 S.Ct. 1753, 149 

L.Ed.2d 787 (2001) . . . Rather than restrict truthful speech, 

the typical ‘method of deterring unlawful conduct is to 

impose an appropriate punishment on the person who engages 

in it.’ Bartnicki, 532 U.S. at 529, 121 S.Ct. 1753. 

IMDB.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020) (emphasis added). 

The Second, Third, and Fifth Circuits and the Southern District of New York all 

interpret Pittsburgh Press and Central Hudson in the same manner as the Ninth Circuit—

as applying only to facially unlawful speech, not to speech that might or might not relate 

to unlawful activity. Accord Greater Philadelphia Chamber of Com. v. City of 

Philadelphia, 949 F.3d 116, 142 & n.170 (3d Cir. 2020) (rejecting city’s argument that 

speech “concern[ed] unlawful activity” where the speech might relate to unlawful 

activity because “commercial speech should not lose the protection of the First 

Amendment simply because a legislature has prohibited one of many uses of the 

regulated speech,” unlike restricting “advertising of the sale of cocaine, for example, 

[which] would present a speech restriction that always and only related to illegal activity 

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because there are no other legal uses/purposes behind the sale of cocaine”) (emphasis in 

original); Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 

F.3d 104, 114 (2d Cir. 2017) (in holding a town ordinance unconstitutional because it 

“could be applied to prohibit speech proposing no illegal transaction,” the Court held: 

“[T]he First Amendment offers no protection to speech that proposes a commercial 

transaction if consummation of that transaction would necessarily constitute an illegal 

act. However, if, as here, there are plausible ways to complete a proposed transaction 

lawfully, speech proposing that transaction ‘concerns lawful activity’ and is therefore 

protected commercial speech.”) (emphasis in original) (citing Valle Del Sol Inc., 709 F.3d 

at 821); Eimann v. Soldier of Fortune Mag., Inc., 880 F.2d 830, 837-38 (5th Cir. 1989) 

(rejecting position that would require publishers to reject “any suspicious, ambiguous ad 

that might cause serious harm,” because “in the constitutional arena we have noted that 

the possibility of illegal results does not necessarily strip an ad of its commercial speech 

protection”); Pruett v. Harris Cty. Bail Bond Bd., 499 F.3d 403, 414 (5th Cir. 2007) (the 

“threshold inquiry” under Central Hudson asks whether “the product or service spoken 

about is illegal,” not whether a commercial solicitation might lead to a violation of the 

law); Dunagin v. City of Oxford, 718 F.2d 738, 743 (5th Cir. 1983) (en banc) (“The 

commercial speech doctrine would disappear if its protection ceased whenever the 

advertised product might be used illegally.”); Art & Antique Dealers League of Am., Inc. 

v. Seggos, 394 F. Supp. 3d 447, 459 (S.D.N.Y. 2019) (“Although the First Amendment 

does not protect speech proposing a transaction that ‘necessarily constitute[s] an illegal 

act,’ if ‘there are plausible ways to complete a proposed transaction lawfully, speech 

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proposing that transaction ‘concerns lawful activity’ and is therefore protected 

commercial speech.’”).

3. The Government’s Burden Is Particularly High Because This Case Involves 

the Publication of Third-Party Speech, Not First-Party Speech.

The government’s argument suggests it believes that, by publishing third-party 

ads, any criminal intent of the persons posting those ads transfers to the publisher of those 

ads, Backpage.com, and then to Defendants, based on the act of publication. The 

Constitution flatly prohibits what the government suggests and, instead, requires proof of 

specific intent on the part of the publishers, independent of the act of publishing. Bursey 

v. United States, 466 F.2d 1059, 1087 (9th Cir. 1972) (“Printing, publishing, or 

distributing the speech [] is not criminal unless the persons who did these acts had the 

specific intent required by the statutes which were the basis of the investigation. . . . The 

act of printing, publishing, or distributing the speech [] supplies no basis for an inference 

that the act was done with the proscribed intent.”) (emphasis added). 

In short, not only must the Court and the jury presume that all ads published on 

Backpage.com were lawful unless and until the government proves otherwise, but, even 

if the government proves that one or more ads were outside the protection of the First 

Amendment, the government cannot even suggest to the jury that the fact that 

Backpage.com published such an ad is proof of specific intent. Indeed, while the 

government argues that the jury can consider purportedly “coded” terms in ads to prove 

illegality or intent, the District Court in the Western District of Washington flatly rejected 

the same argument made by the State of Washington when striking down as 

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unconstitutional under the First Amendment (not just under the Communications 

Decency Act, as the government suggests) a statute that tried to do directly what the 

government here seeks to accomplish under the Travel Act here. Backpage.com, LLC v. 

McKenna, 881 F. Supp. 2d 1262, 1279 (W.D. Wash. 2012) (“[W]here an online service 

provider publishes advertisements that employ coded language, a reasonable person 

could believe that facts exist that do not in fact exist: an advertisement for escort services 

may be just that.... [I]f the offer is implicit, how can a third party ascertain that which is 

being offered before the transaction is consummated?”).

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