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Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice)

Erin E. McCampbell Paris (NY Bar No. 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

vs.

Michael Lacey, et al., 

 

 Defendants.

NO. CR-18-00422-PHX-SMB

DEFENDANT MICHAEL LACEY’S 

JOINDER IN DEFENDANT JOHN 

BRUNST’S MOTION TO SEEK 

ADMISSION OF EVIDENCE OF GOOD 

FAITH RE: STATE OF MIND

(Oral argument requested)

Defendant Michael Lacey, by and through his undersigned attorneys, hereby joins in 

Defendant John Brunst’s Motion to Seek Admission of Brunst’s Testimony Re: State of Mind

(“Motion”) and incorporates all points raised in the Motion as if fully set forth herein. Although 

this Court has previously precluded defense counsel from admitting evidence of good faith through 

cross examination of government witnesses, we do not understand that ruling to be a limitation on 

factual, non-privileged information to be admitted through defense witnesses, including evidence of 

Case 2:18-cr-00422-DJH Document 1886 Filed 10/22/23 Page 1 of 8
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a lack of criminal intent and state of mind of a Defendant. In an abundance of caution, we provide 

the instant proffer of the testimony Michael Lacey would provide, as well as examples of the exhibits 

we would seek to admit through him in addition to those identified in the Motion, all of which he 

considered and relied upon in making his determination that Backpage was a lawful operation. 

I. Good faith reliance on James Larkin

Lacey had nothing to do with the oversight or operation of Backpage. That fell on the 

publishing side of the newspaper conglomerate owned and operated by Lacey and Larkin, and 

Larkin was in charge of publishing. Lacey was the Editor-in-Chief and oversaw employees who 

created the content of the articles published in the newspapers, including the editors and writers. 

Because these two business divisions were separated, Lacey relied on Larkin. This division existed 

for decades before the creation of Backpage. Lacey had no reason to doubt Larkin because Larkin 

had demonstrated, over decades, that he was a highly ethical and thoughtful Chief Executive Officer.

On many occasions, Larkin advised Lacey that Backpage had retained some of the most 

prominent attorneys in the country on internet free speech and safety. In the face of public protests, 

negative media coverage, and communications from organizations like NCMEC, NAAG, Auburn 

Seminary, and Polaris, Larkin assured Lacey, as well as all other employees, that Backpage was a 

lawful platform for third-party speech as advised by each of these prominent attorneys. Among 

others, these attorneys included outside counsel James Grant and Robert Corn-Revere of Davis 

Wright Tremaine, LLP, Samuel Fifer, then a partner at Dentons, LLP, online safety expert and 

member of the Board of Directors of NCMEC, Hemanshu Nigam, of SSP Blue, and his colleague, 

Simrin Hooper, as well as General Counsel for Backpage, Elizabeth McDougall. In addition to the 

advice of these attorneys, Lacey knew that one of the members of the Board of Directors of Village 

Voice Media Holdings, Co., the parent company to Backpage, Donald Moon, was a well-regarded 

Arizona attorney who advised Larkin about Backpage’s operations, and on some occasions, advised 

Lacey as well. The existence of these relationships with counsel, gave Lacey comfort that Larkin’s 

assurances that Backpage was complaint with the law were correct. Because Lacey never doubted 

Larkin’s operation of Backpage as a lawful enterprise, he did not believe he was facilitating a crime 

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of any kind. Larkin’s assurances were vindicated over and over again with one judicial victory after 

another, as discussed below. 

II. Good faith reliance on advice of counsel

It is our understanding that, even assuming the prerequisites to an advice-of-counsel defense 

were satisfied, the defense would be limited to advice concerning publication of the 50 ads that are 

the subject of the Travel Act Counts(Counts 2-51) and that Lacey would not be able to testify about 

any other advice obtained or received. This joinder seeks confirmation that this Court has limited 

the defense in that manner. 

To be clear, Lacey is not aware of advice ever being sought pertaining to any specific ad. 

Instead, Backpage sought advice about its operating practices, moderation, the lawfulness of adult 

speech, Section 230 of the Communication Decency Act, the First Amendment’s application to the 

publication of third-party speech, and other topics. On some occasions, even though Lacey was not 

involved with Backpage, he reviewed privileged and non-privileged materials prepared by attorneys, 

and sought and relied upon advice from Don Moon and other counsel as to the lawfulness of 

Backpage’s operations. He would seek to admit Exhibits 5518, 5519, 5520, 5521, 5523, 5526, 5530.1 

His reliance on this advice, as well as the advice of courts through judicial opinions he had a good 

faith belief that he was not facilitating crime of any kind is documented in email he sent. He would 

seek to admit Exhibit 5529. 

III. Good faith reliance on non-privileged attorney-related evidence

Lacey’s steadfast belief in Backpage’s lawful operation was founded upon non-privileged 

attorney communications, as discussed in the Motion and incorporated herein by reference, as well 

as his knowledge of the following additional non-privileged attorney communications:

 1 Critically, he should not be required to waive privilege of any kind because, when denying 

the Motion to Dismiss for Invasion of Privilege (Dkt. 1168), this Court ruled that legal positions 

taken in public filings or disclosed to third-parties render any other communications between client 

and attorney about that legal position non-privileged. While Lacey disagrees with that ruling, it is 

the law the case. 

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• An April 4, 2012 Letter from Elizabeth McDougall (Ex. 1911A), that Lacey forwarded to 

Kathleen Ferris (admitted Ex. 1911B), indicating that Backpage was a lawful platform for 

classified ads and that it was committed to keeping illegal content off the website.

• A March 14, 2017 Letter from the First Amendment Lawyers Association to the California 

Attorney General asserting that the state prosecution of Ferrer, Lacey, and Larkin for crimes 

arising out of their publication of third-party speech, including conspiracy to pimp, and 

pimping, violated the First Amendment. (Ex. 5538.) 

• Amicus briefing submitted in support of Backpage during various litigation, including, as 

discussed here, amicus briefing in support of Backpage in the Dart case on appeal to the 

Seventh Circuit. For example, in the amicus brief submitted on behalf of the CATO 

Institute, Reason Foundation, and DKT Liberty Project, Lacey learned that leading civil 

rights organizations believed that Backpage was a First Amendment protected platform for 

First Amendment protected speech, including advertisements for adult services, and further, 

that the First Amendment precluded any party from assuming or inferring from an ad that 

it relates to illegal conduct. (Ex. 5068.) As the Motion makes clear, these parties supported 

Backpage even though the record included most, if not all, of the allegations at issue in this 

litigation, including, but not limited to, after-the-fact notice of the misuse of the website for 

prostitution and child-sex trafficking, affiliate ad links, including The Erotic Review, 

moderation/editing of ads, and the charging of fees for ads. 

IV. Good faith reliance on judicial opinions 

Lacey’s steadfast belief in Backpage’s lawful operation was founded upon his knowledge of 

and understanding that Backpage had prevailed in numerous federal proceedings. For example, 

after a grand jury subpoena issued by a grand jury sitting in the Western District of Washington was 

quashed, and the United States Attorney declined to pursue any further charges, Lacey’s belief in the 

lawful operation of Backpage was reinforced. (Ex. 5531.) 

As discussed in greater detail in the Motion, and incorporated herein by reference, Lacey 

relied on the recognition that Backpage was a First Amendment protected platform publishing First 

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Amendment protected speech, including the publication of ads for lawful adults services such as 

escorting, massage, and dominatrices as discussed in both Backpage.com, LLC v. McKenna, 881 F. 

Supp. 2d 1262 (W.D. Wash. 2012) and Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015).

(Exs. 5902, and others.)

Moreover, the California Attorney General’s Office brought two criminal complaints against 

Lacey, Larkin, and Ferrer alleging, among other things, pimping counts and conspiracy to engage in 

pimping, with all pimping-related charges dismissed. Although the opinions ultimately relied on 

Section 230, they also recognized that Backpage had First Amendment rights and that Section 230 

was a statute designed to protect First Amendment rights. (Exs. 5025, 5324.) All of this reinforced 

his belief that Backpage was a lawful enterprise.

The same First Amendment that was discussed as controlling in these opinions is the same 

First Amendment that Lacey relied upon in making his determination that Backpage was a lawful 

operation. Indeed, there is only one First Amendment it either applies or it doesn’t and Lacey had 

no reason to believe anything other than that Backpage was a First Amendment protected platform 

for First Amendment protected third-party speech.

 V. Good faith reliance on public officials

Lacey’s steadfast belief in Backpage’s lawful operation was founded upon his knowledge of 

statements of public officials. Lacey was aware of statements of public officials indicating that 

website operators, like Backpage, could not be prosecuted with any federal crimes. For example, 

Lacey was aware of the following statements by public officials:

• Testimony of Francine Hakes, who was, in September 2010, the top DOJ prosecutor 

on cybercrime, before the House Subcommittee on Crime, Terrorism, and 

Homeland Security, wherein she testified that a website operator could not be 

prosecuted under federal law unless the operators “were . . . conspiring with those 

who were misusing their site, that is, knowingly conspiring to violate the law,” and 

further, that “intentional neglect” of misuse of a website was insufficient as a matter 

of law. (Ex. 6247.)

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• Statements by Ernie Allen, and top DOJ officials informing Ernie Allen, that 

Backpage and its owners and operators could not be prosecuted for any federal crime 

because the government could not establish the high level of mens rea necessary to 

obtain a conviction. Don Moon conveyed this statement to Lacey and Larkin. (Exs. 

5519, 5520.)

• Ernie Allen, too, documented these statements from Eric Holder and the other top 

DOJ officials in several emails: “Two years ago I met with Attorney General Eric 

Holder on this. The sites [craigslist, Backpage, and others] were blatant. The young 

women in the ads were nude, there were graphic images of sex acts, and there was 

advertising and links to the so called “John Boards,” like Erotic Review, which 

provide detailed reviews of the services provided by each young woman. . . . . The 

Attorney General sent some Criminal Division prosecutors over to meet with me. 

They concluded that the mens rea standard (the legal standard that requires an act to 

be knowing and intentional) could not be overcome for a site like Backpage which 

by that time had eliminated nudity in the ads, eliminated pornographic images, 

stopped links to the John Boards, and was making a good faith effort to screen, 

monitor, and report.” (Ex. PC-EA-82.)

• In fact, the inability to prosecute Backpage federally was so well understood, that 

Congress enacted an amendment to Section 230 of the CDA, commonly referred to 

as SESTA/FOSTA in 2018. In the House Judiciary Report published on February 

20, 2018, in advance of enactment of SESTA/FOSTA, the House found, among 

other things, that “current federal criminal law, which is unaffected by the CDA, 

presently lacks proper prosecutorial tools to combat these websites.” (Ex. 6119 at 

5.) This Report, known to Lacey, further strengthened his belief that the operation 

of Backpage was lawful.

Case 2:18-cr-00422-DJH Document 1886 Filed 10/22/23 Page 6 of 8
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• Moon advised Lacey and Larkin that, in his conversations with NCMEC Officer 

John Shehan, Shehan told him that there was not any website doing a more 

professional or better job than Backpage in child safety / site mitigation. (Ex. 5518).

• The Director of the FBI, Robert Mueller, presented a commendation to Ferrer 

recognizing Backpage’s efforts at aiding prosecution of those who misused the 

website. Lacey’s awareness of this praise from such a high level law enforcement 

officer, again, reinforced his belief that Backpage was not just a lawful operation, but 

actively providing assistance to law enforcement.

CONCLUSION

For all these reasons, Lacey respectfully requests permission to testify in his own defense on 

his good faith, as set forth above.

 RESPECTFULLY SUBMITTED this 22nd day of October, 2023, 

Paul J. Cambria, Jr.

Erin McCampbell Paris

LIPSITZ GREEN SCIME CAMBRIA LLP

 By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr.

Attorneys for Michael Lacey

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On October 22, 2023, a PDF version

of this document was filed with

Clerk of the Court using the CM/ECF

System for filing and for Transmittal

Of a Notice of Electronic Filing to the

Following CM/ECF registrants:

Kevin Rapp, kevin.rapp@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov

Daniel Boyle, daniel.boyle2@usdoj.gov

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov

Austin Maxwell Berry, austin.berry2@usdoj.gov

Case 2:18-cr-00422-DJH Document 1886 Filed 10/22/23 Page 8 of 8