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Timothy J. Eckstein, 018321

Joseph N. Roth, 025725

Sarah P. Lawson, 036436

OSBORN MALEDON, P.A.

2929 North Central Avenue, 20th Floor

Phoenix, Arizona 85012-2793

(602) 640-9000

teckstein@omlaw.com

jroth@omlaw.com

slawson@omlaw.com

Attorneys for James Larkin

Additional counsel on following page

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

Case No. 2:18-cr-00422-PHX-DJH

DEFENDANTS’ RESPONSE TO 

GOVERNMENT’S MOTION IN 

LIMINE TO PRECLUDE 

REFERENCES TO SECTION 230 

OF THE COMMUNICATIONS 

DECENCY ACT

(Oral Argument Requested)

Case 2:18-cr-00422-DJH Document 1615 Filed 06/15/23 Page 1 of 7
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Paul J. Cambria, Jr. (NY 15873, admitted pro hac vice)

Erin E. McCampbell (NY 4480166, admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

(716) 849-1333

pcambria@lglaw.com

emccampbell@lglaw.com

Attorneys for Michael Lacey

Bruce S. Feder (AZ 004832)

FEDER LAW OFFICE PA

2930 E. Camelback Rd., Suite 160

Phoenix, Arizona 85016

(602) 257-0135

bf@federlawpa.com

Eric Walter Kessler

KESSLER LAW OFFICE

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

(480) 644-0093

Eric.kesslerlaw@gmail.com

Attorneys for Scott Spear

Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW P.C.

1875 Century Park E., Suite 2300

Los Angeles, California 90067

(310) 201-2100

glincenberg@birdmarella.com

gpanchapakesan.@birdmarella.com

aneuman@birdmarella.com

Attorneys for John Brunst

David S. Eisenberg

DAVID EISENBERG PLC

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

(602) 237-5076

david@eisenbergplc.com

Attorneys for Andrew Padilla

Case 2:18-cr-00422-DJH Document 1615 Filed 06/15/23 Page 2 of 7
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Joy Malby Bertrand

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

(480) 656-3919

joyous@mailbag.com

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1615 Filed 06/15/23 Page 3 of 7
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Section 230 of the CDA “immunizes providers of interactive computer services 

against liability arising from content created by third parties.” Gonzalez v. Google LLC, 2 

F.4th 871, 886 (9th Cir. 2021), vacated and remanded on other grounds, 598 U.S. ___, 143 

S.Ct. 1191 (2023).

At the time Congress enacted § 230 [it] did not differentiate dangerous, 

criminal, or obscene content from innocuous content when it drafted § 

230(c)(1). Instead, it broadly mandated that ‘[n]o provider ... of an 

interactive computer service shall be treated as the publisher or speaker of 

any information provided by another information content provider. 47 U.S.C. 

§ 230(c)(1).

Id. at 896 (emphasis in original). Driven by “First Amendment values,” “Congress did not 

sound an uncertain trumpet when it enacted the CDA, and it chose to grant broad 

protections to internet publishers.” Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 29 

(1st Cir. 2016); see also Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003) (“there is little 

doubt that [Congress] sought to further First Amendment and e-commerce interests on 

the Internet”). 

The government primarily argues (Doc. 1594 at 3) that any reference to Section 230 

is not relevant because it does not provide immunity from federal criminal liability. True,

Section 230 does not preclude federal prosecution, but that hardly means that it is

irrelevant to this prosecution.

The government contends that Backpage’s content moderation decisions and its 

content aggregation efforts (offering free adult ads on Backpage.com to, primarily, users 

of its main business rival, craigslist.com) evidence an intent to facilitate crime. But 

Backpage.com’s moderation and aggregation practices were driven largely by the incentives 

and the immunities provided in Section 230, as recognized in numerous court decisions, 

including several involving Backpage.com.

Defendants must be permitted to present evidence tending to negate unlawful 

intent, including by showing that Backpage.com’s moderation and aggregation processes 

were driven by factors other than facilitating crime. Although the Court will instruct the 

jury on the law, it cannot bar Defendants from presenting evidence about their 

contemporaneous understanding of Section 230 and the First Amendment values and 

interests it advanced and how that motivated Backpage’s moderation and aggregation 

Case 2:18-cr-00422-DJH Document 1615 Filed 06/15/23 Page 4 of 7
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practices. To preclude this evidence would violate Defendants’ Fifth and Sixth 

Amendment rights to due process and a fair trial by interfering with their ability to crossexamine the government’s witnesses, to elicit direct testimony from their own witnesses, 

and to present a complete defense that they did not possess the requisite specific intent 

and knowledge to violate the law.

Indeed, many of the government’s witnesses -- Carl Ferrer, Dan Hyer, former 

moderators, NCMEC representatives, etc. -- were interviewed by law enforcement or 

communicated with Defendants about Section 230. The Jencks materials disclosed by the 

government for these witnesses are replete with mentions of Section 230. Defendants are 

entitled to cross-examine these witnesses on their understanding of this law, its impact on 

Backpage practices, and other matters. For example, Section 230’s safe harbor immunity 

provision influenced how Backpage created and enforced moderation practices and other 

policies. To explain what motivated Defendants’ conduct, the jury must be told about the 

information Defendants received regarding Section 230, including the articles, 

correspondence and other publications communicated to Defendants.

Furthermore, the government’s motion failed to disclose that it previously moved 

to preclude the testimony of defense expert, Eric Goldman, about Section 230, Doc. 905, 

or that the Court, while granting that motion in part, ruled that Professor Goldman will be 

allowed to testify about Section 230: “Testimony that Section 230 was meant to incentivize 

Internet providers to engage in moderation practices will be allowed.” Doc. 1081 at 20. 

That ruling implicitly recognizes that discussion of Section 230 is relevant, including as to 

Backpage’s moderation practices. This is law of the case. Having failed to notice its own 

Section 230 expert and having failed to block the testimony of the defense expert, the 

government cannot remedy its own lack of an expert witness through an end-run around 

the Court’s earlier ruling regarding the defense’s Section 230 expert. 

Given the central role Section 230 plays in influencing internet moderation 

practices generally and Backpage’s moderation practices specifically, the government is 

simply wrong to argue (at 3-4) that reference to Section 230 would “mislead[]”, “confus[e] 

the issues,” or “wast[e] time.” The government wants the jury to conclude that Backpage’s 

moderation practices are evidence of an intent to facilitate criminal activity. Evidence 

Case 2:18-cr-00422-DJH Document 1615 Filed 06/15/23 Page 5 of 7
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regarding Section 230 and its influence on Backpage’s moderation policies directly rebut 

that argument. It is essential that the jury hear and understand this testimony. To preclude 

it would not confuse or waste time – it would keep the jury in the dark about critical

evidence necessary to decide Defendants’ state of mind.

Finally, the assertion (at 4) that Section 230 could only be relevant to jurynullification is as wrongheaded as it is revealing. The evidence related to Section 230 

severely undercuts key pillars of the government’s case because it shows Defendants’ noncriminal, good-faith desire to follow the law. That the jury may find such evidence 

persuasive is not “nullification.” Though the government plainly wants the jury kept 

ignorant of Section 230, the jury cannot understand the facts of this case without it. The 

Court must deny this motion.

DATED this 15th day of June, 2023.

OSBORN MALEDON, P.A.

By s/ Joseph N. Roth

Timothy J. Eckstein

Joseph N. Roth

Sarah P. Lawson

2929 North Central, 20th Floor

Phoenix, Arizona 85012-2794

Attorneys for James Larkin

LIPSITZ GREEN SCIME CAMBRIA LLP

By s/ Paul J. Cambria, Jr. (w/permission)

Paul J. Cambria, Jr. (pro hac vice)

Erin E. McCampbell (pro hac vice)

42 Delaware Avenue, Suite 120

 Buffalo, New York 14202

Attorneys for Michael Lacey

FEDER LAW OFFICE PA

By s/ Bruce S. Feder (w/permission)

Bruce S. Feder

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2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

KESSLER LAW OFFICE

By s/ Eric W. Kessler (w/permission)

Eric W. Kessler

6720 N. Scottsdale Rd., Suite 210

Scottsdale, Arizona 85253

Attorneys for Scott Spear

BIRD, MARELLA, BOXER, WOLPERT,

NESSIM, DROOKS, LINCENBERG & 

RHOW P.C.

By s/ Gary S. Lincenberg (w/permission)

Gary S. Lincenberg

Gopi K. Panchapakesan

Ariel A. Neuman

1875 Century Park E., Suite 2300

Los Angeles, California 90067

Attorneys for John Brunst

DAVID EISENBERG PLC

By s/ David S. Eisenberg (w/permission)

David S. Eisenberg

3550 N. Central Ave., Ste. 1155

Phoenix, Arizona 85012

Attorneys for Andrew Padilla

JOY BERTRAND LAW 

By s/ Joy M. Bertrand (w/permission)

Joy M. Bertrand

P.O. Box 2734

Scottsdale, Arizona 85252

Attorneys for Joye Vaught

Case 2:18-cr-00422-DJH Document 1615 Filed 06/15/23 Page 7 of 7