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GARY M. RESTAINO 

United States Attorney 

District of Arizona 

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov) MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov) PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov) 

Assistant U.S. Attorneys 

40 N. Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone (602) 514-7500 

DAN G. BOYLE (N.Y. Bar No. 5216825, daniel.boyle2@usdoj.gov) Special Assistant U.S. Attorney 

312 N. Spring Street, Suite 1400 

Los Angeles, CA 90012 

Telephone (213) 894-2426 

KENNETH POLITE 

Assistant Attorney General 

Criminal Division, U.S. Department of Justice 

AUSTIN M. BERRY (Texas Bar No. 24062615, austin.berry2@usdoj.gov) 

U.S. Department of Justice 

Child Exploitation and Obscenity Section 

1301 New York Avenue, NW, 11th Floor 

Washington, D.C. 20005 

Telephone (202) 412-4136 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al., 

 Defendants. 

CR-18-422-PHX-DJH 

UNITED STATES’ MOTION 

IN LIMINE TO PRECLUDE 

REFERENCES TO SECTION 230 OF 

THE COMMUNICATIONS 

DECENCY ACT 

Case 2:18-cr-00422-DJH Document 1594 Filed 06/08/23 Page 1 of 6
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The United States moves in limine to preclude Defendants’ counsel, Defendants, 

and their witnesses from introducing evidence or argument at trial about Section 230 of the 

Communications Decency Act of 1996, 47 U.S.C. § 230 (Section 230 or the CDA), 

including that Defendants’ actions were protected or immunized by Section 230.

1 Courts 

have construed Section 230 to provide immunity from civil claims for websites that publish 

content created by third parties. (See Doc. 649 at 21-22 (citing cases).) It does not apply to 

the federal criminal prosecutions of Backpage.com, LLC (Backpage) and its operators, 

including Defendants. United States v. Lacey, 423 F. Supp. 3d 748, 760 (D. Ariz. 2019) 

(“This case, however, does not concern civil liability, and the CDA has ‘no effect’ on ‘any 

other Federal criminal statute.’”) (quoting 47 U.S.C. § 230(e)(1)); Doc. 840 at 7 (denying 

“Motion to Dismiss Indictment Based on Section 230 of the Communications Decency 

Act”). These rulings are law of the case. See Doc. 1524 at 4 n.2.

Yet, in their September 8, 2021 opening statements, counsel repeatedly referred to 

Section 230, telling the jury that “Section 230 . . . gives immunity to website hosts like 

Backpage.” (Doc. 1342 at 56:12-13, Bienert; see also id. at 56:19-20 (“this is legal under 

the First Amendment and Section 230”), 59:1-2 (the court ruled that a Tennessee state law 

“is preempted, both by this statute Section 230, and it also likely violates the First 

Amendment”), 61:1-2 (“these are legal practices and it stays that way unless Congress 

changes it”), 61:14-17, 61:18-21 (“Congress did not sound an uncertain trumpet when it 

enacted this act that involved Section 230, and it chose to give broad protection to internet 

publishers,” and the proper remedy for plaintiffs “is through legislation not litigation”); 

75:20-76:8 (referring to choice made by “Congress”); Doc. 1343 at 16:22-17:2 (“these 

attorneys who had preceded me have made a great point about what it means to be able to 

publish in accordance with First Amendment and Section 230 of the statute that was quoted 

quite thoroughly by counsel. [Defendants] had the right to do this.”).)

1 Certification: On June 5, 2023, counsel for the United States met and conferred in good faith with Defendants’ counsel regarding the relief requested in this motion, and the parties 

could not reach agreement. The Court has not previously considered or ruled on the motion.

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Evidence is relevant if “(a) it has any tendency to make a fact more or less probable 

than it would be without the evidence; and (b) the fact is of consequence in determining 

the action.” Fed. R. Evid. 401. Irrelevant evidence is not admissible, Fed. R. Evid. 402, and 

even relevant evidence may be excluded if “its probative value is substantially outweighed 

by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, 

wasting time, or needlessly presenting cumulative evidence,” Fed. R. Evid. 403.

Section 230 is not relevant: It does not apply to this federal criminal prosecution.

(Doc. 840 at 7). It is merely a safe harbor for providers to avoid civil liability, which 

Backpage or its owners effectively used in multiple cases for several years around the 

country. See, e.g., Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 23 (1st Cir. 2016)

(“Congress made pellucid that it sought to ensure vigorous enforcement of Federal criminal 

laws to deter and punish illicit activities online,” while providing civil tort immunity); 

Backpage.com, LLC v. Dart, 807 F.3d 229, 233-34 (7th Cir. 2015) (“[Under] section 

230(c), ‘an intermediary . . . normally is indifferent to the content of what it transmits[.’]

Sounds like our case.”); Doe ex rel. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149, 165 

(D. Mass. 2015) (“this court has no choice but to adhere to the law that Congress has seen 

fit to enact”); M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1058 

(E.D. Mo. 2011) (“Congress has declared such websites” immune in civil cases).

But this is a federal criminal prosecution, and thus Section 230 provides none of the 

immunity that it provided in the civil cases discussed at the first trial. If this Court has 

already ruled that Section 230 does not preclude this prosecution, it should similarly 

conclude that Section 230 cannot be argued to the jury. Defendants should be precluded 

from referencing the CDA because Section 230 itself expressly declares that it does not 

apply to federal criminal prosecutions. 47 U.S.C. § 230(e)(1) (“Nothing in this section shall 

be construed to impair the enforcement of . . . any other Federal criminal statute.”).

Further, this Court should preclude references to Section 230 because any probative 

value it may have would be substantially outweighed by risks of misleading the jury,

confusing the issues, and wasting time. Fed. R. Evid. 403. Section 230 has been widely 

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discussed by public officials and the media, and there is a real chance that the jury has 

some familiarity with “Section 230” and what they believe it means. Allowing Defendants 

to reference Section 230 poses a serious risk of misleading the jury about whether the

statute protects Defendants here. Further, referring to Section 230 would risk confusing the 

issues, because it might reasonably lead jurors to believe that the CDA has some bearing 

on whether Defendants committed the crimes charged beyond a reasonable doubt. Finally, 

permitting references to Section 230 would risk wasting time, because the United States 

would be forced to spend time explaining to the jury why Section 230 has no bearing on 

this federal criminal case. 

If Defendants are permitted to make Section 230 arguments at trial, they will 

essentially be arguing for nullification—which is not allowed. Nullification asks jurors to 

violate their oath to return a verdict based solely on the evidence and the court’s 

instructions, and acquit for improper reasons like sympathy, bias, prejudice, or 

disagreement with the law. It “is ‘a violation of a juror’s sworn duty to follow the law as 

instructed by the court,’ and ‘trial courts have the duty to forestall or prevent’ it, including 

‘by firm instruction or admonition.’” United States v. Lewis, 2023 WL 1990544, at *2 (9th 

Cir. Feb. 14, 2023) (citation omitted). 

While a jury may nullify, Defendants do not have a right to argue for nullification. 

Rather than wait for counsel to make these arguments at a second trial (as they did before),

this Court should preclude them at the outset. Cf. United States v. Blixt, 548 F.3d 882, 890 

(9th Cir. 2008) (court properly instructed jury to disregard jury nullification arguments);

United States v. Sturgis, 578 F.2d 1296, 1300 (9th Cir.1978) (a judge should “interfere with 

an attorney’s closing argument when it is ‘legally wrong’” or “unduly inflammatory”); 

United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (the court “may block 

defense attorneys’ attempts to serenade a jury with the siren song of nullification”). 

Conclusion 

 This Court should preclude Defendants’ counsel, Defendants, and their witnesses 

from referring to Section 230 or the CDA at any time in front of the jury. 

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Respectfully submitted this 8th day of June, 2023.

 GARY M. RESTAINO 

 United States Attorney 

 District of Arizona 

 KENNETH POLITE 

 Assistant Attorney General Criminal Division, U.S. Department of Justice 

s/Kevin M. Rapp_______ KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER KOZINETS 

 ANDREW STONE 

DANIEL BOYLE

Assistant U.S. Attorneys 

 AUSTIN M. BERRY 

Trial Attorney 

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CERTIFICATE OF SERVICE 

I hereby certify that on June 8, 2023, I electronically transmitted the attached 

document 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/ Daniel Parke

Daniel Parke 

U.S. Attorney’s Office 

Case 2:18-cr-00422-DJH Document 1594 Filed 06/08/23 Page 6 of 6