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Paul F. Eckstein (#001822)

PEckstein@perkinscoie.com

Daniel C. Barr (#010149)

DBarr@perkinscoie.com

John H. Gray (#028107)

JHGray@perkinscoie.com

PERKINS COIE LLP

2901 North Central Avenue, Suite 2000

Phoenix, Arizona 85012-2788

Telephone: 602.351.8000

Facsimile: 602.648.7000

DocketPHX@perkinscoie.com

Kathleen E. Brody (#026331)

KBrody@acluaz.org

ACLU Foundation of Arizona

3707 North 7th Street, Suite 235

Phoenix, Arizona 85013

Telephone: 602.650.1854

Attorneys for Amicus ACLU of Arizona

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v.

Michael Lacey, et al.,

Defendants.

No. CR-18-422-PHX-SMB

ACLU OF ARIZONA’S AMICUS 

CURIAE BRIEF REGARDING 

FIRST AMENDMENT 

CONSIDERATIONS

Case 2:18-cr-00422-DJH Document 620-1 Filed 05/28/19 Page 1 of 8
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I. Amicus ACLU of Arizona’s Interest

The ACLU of Arizona, the state affiliate of the national American Civil Liberties 

Union (“ACLU”), is a statewide nonpartisan, nonprofit organization of over 14,000 

members throughout Arizona dedicated to protecting the constitutional rights of all. The 

fight for freedom of speech has been a bedrock of the ACLU’s mission since the 

organization was founded in 1920, driven by the need to protect the constitutional rights of 

conscientious objectors and anti-war protesters. The ACLU’s work to protect freedom of 

expression has continued over the last century, including consistent efforts to combat 

censorship of private citizens and the media. The ACLU of Arizona frequently files amicus 

curiae briefs in state and federal courts on a wide range of civil liberties and civil rights 

issues. The ACLU of Arizona files this amicus brief to advise the Court on important First 

Amendment principles implicated by this prosecution. 

II. Introduction 

The First Amendment’s guarantee of freedom of speech prohibits the government 

from prosecuting someone for making another person’s speech available to the public 

without proving that the defendant either specifically intended to further unlawful activity 

or knew the specific contents of the unlawful speech. The Supreme Court protected those 

freedoms during the newspaper, bookstore, and periodical age (the “Print Age”). That 

precedent has stood into the Internet Age and should not be washed away simply because 

the speech at issue here appeared in an online forum rather than in a newspaper classified 

section, magazine advertisement, or adult section of a bookstore. Rather, that precedent is 

even more relevant and more justified in the Internet Age, where the volume of material 

published each hour exceeds the material published in the Print Age each year. 

If people fear the sword of criminal liability when they provide an online forum 

where others might post both protected and unprotected speech, then they will self-censor 

and restrict even protected speech out of fear of prosecution. Alternatively, they will shut 

down their websites completely because the burden of manually checking every single 

third-party post and trying to judge for themselves which posts can stay or go would be 

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impractical to any business. To avoid this chilling effect, the Court should refuse to impose 

criminal liability absent proof beyond a reasonable doubt that the defendants specifically 

intended to further unlawful activity or knew the content of each allegedly illegal post. 

III. The First Amendment’s longstanding protection against criminal liability for 

distributing speech should apply no matter the medium. 

The Supreme Court has long cautioned against imposing criminal liability against a 

person for distributing others’ speech without showing something more than mere highlevel knowledge or risk that the speech might relate to illegal conduct. In Smith v. 

California, the Supreme Court considered whether the government could impose criminal 

liability on a bookseller for selling obscene books without first showing that the bookseller 

knew the contents of those particular books. 361 U.S. 147, 150–54 (1959). The Court held 

it unconstitutional to “dispens[e] with any requirement of knowledge of the contents of the 

book on the part of the seller.” Id. at 153.1

By explaining the free speech concerns of imposing criminal liability on a person 

who distributes another’s speech, the Court indicated that the First Amendment protects a 

defendant who does not know what each allegedly obscene book said. According to the 

Court, under the fear of criminal prosecution, the bookseller would “tend to restrict the 

books he sells to those he has inspected; and thus the State will have imposed a restriction 

upon the distribution of constitutionally protected as well as obscene literature.” Id.; see 

also id. at 150-51 (cautioning against applying criminal statutes where doing so has “the 

collateral effect of inhibiting the freedom of expression, by making the individual more 

reluctant to exercise it”). In other words, the First Amendment forecloses criminal liability

when the bookseller’s only alternative is to “make himself aware of the contents of every 

book in his shop” and try to guess if he or she will face criminal liability for allowing that 

speech to reach the public’s eye. See id. (emphasis added). That demand “would be 

altogether unreasonable.” Id.

 1 Specific intent to further unlawful activity may also pass muster under the First 

Amendment as an alternative mens rea standard. 

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But, as Smith found, the cost does not end with the one who distributes the speech:

the true cost falls on the public. “[B]y restricting [the bookseller,] the public’s access to 

reading matter would be restricted. If the contents of bookshops and periodical stands were 

restricted to material of which their proprietors had made an inspection, they might be 

depleted indeed.” Id. The bookseller would self-censor to allow only that “material with 

which he could familiarize himself” “in the face of his absolute criminal liability.” Id. The 

end result is that the public is deprived of both protected and unprotected speech. See id.

That Smith examined a strict liability statute does not disrupt its guidance here. The 

Supreme Court outlined the chilling effect on speech where the government imposes 

criminal liability without showing that the defendant at least knew about the allegedly 

unlawful speech at issue. Id. (“By dispensing with any requirement of knowledge of the 

contents of the book on the part of the seller . . . [e]very bookseller would be placed under 

an obligation to make himself aware of the contents of every book in his shop. It would be 

altogether unreasonable to demand so near an approach to omniscience.”) (citation 

omitted); see also Manual Enterprises, Inc. v. Day, 370 U.S. 478, 493 (1962) (extrapolating 

from Smith that the First Amendment requires that the allegedly improper speech was 

“shown to” the defendant to allow the “opportunity to judge for himself as to its alleged 

obscenity”). 

The Supreme Court’s warning in Smith has stood the tests of time and practical 

application. Of particular relevance here, the Supreme Court addressed the free speech 

consequences of objectionable advertisements in periodicals in Manual Enterprises, Inc. v. 

Day, 370 U.S. 478, 493 (1962). The Manual Enterprises Court analyzed the Comstock Act, 

which imposed criminal and civil penalties against anyone who transmitted obscene

periodical advertisements through the mail. The Court held that the company’s president 

could not be liable under the law where there was “no evidence that any of this material was 

shown to him” so that he “was afforded no opportunity to judge for himself as to its alleged 

obscenity.” Id. Channeling Smith’s warning, the Court explained, “Since publishers cannot 

practicably be expected to investigate each of their advertisers, and since the economic 

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consequences of an order barring even a single issue of a periodical from the mails might 

entail heavy financial sacrifice, a magazine publisher might refrain from accepting 

advertisements from those whose own materials could conceivably be deemed 

objectionable by the Post Office Department.” Id. As with the bookstore in Smith, the end 

result is to “deprive such materials, which might otherwise be entitled to constitutional 

protection, of a legitimate and recognized avenue of access to the public.” Id.

Courts have built on Smith in similar contexts, consistently recognizing the chilling 

effect on speech of imposing liability on distributors who do not know the contents of each 

item of allegedly unlawful speech.2 See United States v. X-Citement Video, Inc., 513 U.S. 

64, 67, 69 (1994) (striking down statute that prohibited distributing visual images of minors 

engaged in sexually explicit conduct, noting first that Supreme Court precedent required 

that “the defendant possess knowledge of the particular fact that one performer had not 

reached the age of majority at the time the visual depiction was produced” and that “some 

form of scienter is to be implied in a criminal statute even if not expressed”) (emphasis 

added); Hunt v. State of Okl., 683 F.2d 1305, 1307–08 (10th Cir. 1982) (requiring that the 

government prove that a criminal defendant “had knowledge of the contents of the material 

he distributed, and that he knew the character and nature of the materials”); cf. Video 

Software Dealers Ass’n v. Webster, 968 F.2d 684, 687-90 (8th Cir. 1992) (relying on Smith 

in civil context, striking down statute that prohibited renting or selling violent videos to 

minors without requiring knowledge or intent, noting that “any statute that chills the 

exercise of First Amendment rights must contain a knowledge element” and warning that a 

defendant wanting “to avoid criminal liability” would “have to view the contents of every 

video in their stores” and instead would choose to “limit videos available to the public to 

the videos the dealers have viewed”) (emphasis added).

3

 2 Whether the solicitation advisements cited in the superseding indictment are 

protected under the First Amendment is beyond the scope of this brief. 3 The First Amendment standard in civil cases might be lower than in criminal cases, but civil cases are at least instructive by analogy where courts found that statutes infringe 

on free speech rights even in the civil context. 

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Only the medium has changed—from the bookstores and periodical pages to the 

Internet—but the First Amendment should still protect a defendant from liability where that 

defendant did not at least know the specific contents of the speech at issue. Commentators 

have echoed this view and urged courts not to restrict First Amendment protections in the 

online criminal context. The prime example appeared in the Stanford Law & Policy Review

and referenced the ongoing Backpage dispute. Lawrence G. Walters, Shooting the 

Messenger: An Analysis of Theories of Criminal Liability Used Against Adult-Themed 

Online Service Providers, 23 Stan. L. & Pol'y Rev. 171 (2012). That article explained that 

“criminal liability has never been extended to mere advertisers of individuals who later 

engage in prostitution.” Id. at 194. Rather, the First Amendment should protect an online 

“advertising forum for such individuals that may later engage in unlawful conduct.” Id. 

Issuing the same warning that Smith gave decades ago for booksellers, the article explained 

that online service providers would behave no differently than the Supreme Court 

anticipated booksellers would behave if under the threat of criminal prosecution for the 

material they distribute. When internet companies face “uncertain or intolerable legal 

exposure,” they would be “inclined to cease offering a forum for communication if the risks 

are too high to justify the anticipated profit. The forum of communication will then cease 

to exist.” Id. at 174. The article emphasized the importance of this First Amendment battle, 

arguing that potential “criminal liability for [online service providers] . . . must be clarified 

if the Internet is to continue to function, free of government-encouraged self-censorship.” 

Id. at 190-91. 

IV. Conclusion

The Court should hold the government to its burden to prove beyond a reasonable 

doubt that the defendants knew that specific advertisements in question solicited illegal 

conduct: it should not to open the door to criminal liability merely for providing an online 

forum where others might have posted improper content. Because the “fundamental 

freedoms of speech and press have contributed greatly to the development and well-being 

of our free society and are indispensable to its continued growth[,] . . . [t]he door barring 

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federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed 

and opened only the slightest crack necessary to prevent encroachment upon more 

important interests.” Smith, 361 U.S. at 155. Even when the government aims at preventing 

prurient conduct, the Court should not “open[] that door too far.” Id. This is not to say that 

every website operator can escape criminal liability. But the Supreme Court has long 

established that the proper amount to “open the door” is to require at least knowledge of the 

specific problematic content, if not also specific intent to further criminal conduct, and not 

to impose an impossible burden leading to state-mandated self-censorship. 

Dated: May 28, 2019

PERKINS COIE LLP

By: /s/ Daniel C. Barr

Paul F. Eckstein (#001822)

Daniel C. Barr (#010149)

John H. Gray (#028107)

2901 North Central Avenue, Suite 2000

Phoenix, Arizona 85012-2788

ACLU FOUNDATION OF ARIZONA

Kathleen E. Brody

3707 North 7th Street, Suite 235

Phoenix, Arizona 85013

Attorneys for Amicus ACLU of Arizona

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CERTIFICATE OF SERVICE

I hereby certify that on May 28, 2019, I electronically transmitted the attached 

documents to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance 

as counsel of record.

s/ Marie van Olffen

78204-0012/144495907.3

Case 2:18-cr-00422-DJH Document 620-1 Filed 05/28/19 Page 8 of 8