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

Erin 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-DJH 

DEFENDANTS’ OPPOSITION TO 

THE GOVERNMENT’S MOTION IN 

LIMINE FOR AN ORDER 

CENSORING THE DEFENSE BY 

BANNING USE OF THE WORDS 

“FIRST AMENDMENT” AND “FREE 

SPEECH” AT TRIAL 

(Oral argument requested) 

Case 2:18-cr-00422-DJH Document 1602 Filed 06/15/23 Page 1 of 7
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The government’s request for the Court to censor defense counsel, Defendants, and 

all defense witnesses by banning the words “First Amendment” and “free speech” at a trial 

where the purported criminal conduct was publishers “publish[ing] ad[s]” posted by third 

parties is an absurd, and unprecedented, assault on the First Amendment. The Court should 

summarily deny the Motion. First, the government complains about the past use of those 

words at trial, but it rarely objected and, when it did, the Court overruled its objections. E.g., 

Doc. 1342 at 42. Those evidentiary rulings plainly were correct—and are the law of the case. 

Moreover, the First Amendment and free speech are highly relevant to Defendants’ state of 

mind. Contrary to the government’s theory, the evidence will show Defendants intended to 

facilitate the First Amendment rights of Backpage.com and its users—not criminal offenses. 

Second, the government asserts the publication of the fifty charged ads was 

unprotected by the First Amendment, asks the Court to presume it will prove that assertion 

at trial, and then, based on its hypothetical victory, asks the Court to bar the defense from 

presenting the arguments the government presumes to defeat. But that just invites clear error: 

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....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). The earlier rulings concerning the 

sufficiency of the untested allegations in the indictment do not support the Motion, as they 

say nothing about what the government ultimately will prove at trial. Doc. 793 at 8, 11 (holding 

“[t]he government carries the burden to show that the speech is unprotected” and it “may 

eventually fail to prove the facts alleged in the SI,” including whether the charged ads actually 

“were for prostitution” and whether Defendants “knew the ads were for prostitution”). The 

earlier order deferring, until after the close of evidence, the decision on whether to provide 

First Amendment instructions is likewise of no relevance. Doc. 1432 at 66 (“it’s more 

appropriate to leave more specific instructions until the final instructions”). 

 Third, the government will have the burden to prove that each Defendant specifically 

Case 2:18-cr-00422-DJH Document 1602 Filed 06/15/23 Page 2 of 7
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intended to facilitate the allegedly unlawful business enterprise associated with each charged 

ad. Defendants therefore must be permitted to present evidence tending to negate intent, 

including by their good faith belief that Backpage.com users had a First Amendment right to 

post facially lawful adult ads and Backpage.com had a First Amendment right to publish them, 

based, in part, on federal court opinions (some of which involved Backpage.com) and the 

opinions of experts. The Court will instruct the jury on the law, but does not mean Defendants 

can be barred from presenting evidence about their contemporaneous understanding of the First 

Amendment’s application to Backpage’s activities. Indeed, Carl Ferrer told the government 

during his interviews that attorneys repeatedly advised Backpage that its publishing activities 

and practices were protected by the First Amendment. 

Fourth, this case is nothing like the Khan and Mohamud decisions, where the defendants 

were charged with criminal conduct plainly outside the scope of the First Amendment—in 

Mohamud attempting to explode a weapon of mass destruction and in Khan providing financial 

support for terrorist organizations. That a court can prohibit mention of the First Amendment 

at trial, if it determines as a matter of law that the criminal conduct alleged is unprotected, has 

no bearing on this case, where the government’s burden at trial will be to prove that core First 

Amendment speech—publishing–was outside the protection of the First Amendment. 

Fifth, and fundamentally, the First Amendment and fundamental principles of free 

speech are central to this case. Each Travel Act count is premised on Backpage.com publishing

a dating, massage, or escort ad—all unquestionably lawful activities. Forty-nine of those fifty 

ads proposed facially lawful transactions (or, at a minimum, not necessarily unlawful 

transactions). Although Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels., 413 US 376, 389 

(1973), established that the First Amendment does not protect advertising “when the 

commercial activity itself is illegal,” it has been narrowly construed to apply only when the 

goods or services advertised are illegal or when the speech itself proposes an illegal transaction, 

not when an advertisement for a lawful service might be associated with unlawful activity. E.g., 

IMDB.com Inc. v. Bacerra, 962 F3d 1111, 1123 (9th Cir 2020) (“Pittsburgh Press implicates only 

those instances when the state restricts speech that itself proposes an illegal transaction.”) (emphasis 

Case 2:18-cr-00422-DJH Document 1602 Filed 06/15/23 Page 3 of 7
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added).1 Moreover, even though a website user who posts an ad he knows to be associated 

with illegal conduct may be unprotected by the First Amendment, the website’s publication of 

the third-party ad remains protected by the First Amendment. Backpage.com, LLC v. McKenna, 

881 F. Supp. 2d 1262, 1280-81 (W.D. Wash. 2012) (“SB 6251 does not fall within the exception 

for offers to engage in illegal activity because [it] prohibits not only ‘offers’ to engage in 

commercial sex acts, but also the direct and indirect publication...of such offers. The thirdparty 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.”).2

Finally, the government claims “defense counsel repeatedly portrayed the First 

Amendment as an absolute defense,” “essentially [] arguing for nullification,” but the 

government identifies no such statements and is wrong on the law.3 Additionally, even if some 

statement about the First Amendment or free speech was objectionable, the Motion should 

have identified the objectionable statement and moved to constrain the statement—not to ban 

all references to the First Amendment or free speech. The government, however, identified 

no such statements and proposed no limiting order. 

 

1 Accord Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 114 

(2d Cir. 2017) (“[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 

[] speech.”) (emphasis in original) 

2 The First Amendment’s protections for publishers of third-party speech have always been 

different from those for the actual speakers. “Printing, publishing, or distributing the [speech] 

is not criminal unless the persons who did these acts had the specific intent required by the 

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

inference that the act was done with the proscribed intent.” Bursey, 466 F.2d at 1087 (emphasis 

added). The Court’s prior ruling that “[t]his case is about these individual defendants and 

whether they had specific knowledge of these ads as facilitating illegal activity” (Doc. 1099 at 

38 (emphasis added)) is in accord, but Defendants had no knowledge of the fifty charged ads, 

the persons who posted those ads, or the activities of those persons. 

3 Of course, if the government fails to prove the publishing of each charged ad was 

unprotected, the First Amendment will be an absolute defense to charges based on those ads. 

Case 2:18-cr-00422-DJH Document 1602 Filed 06/15/23 Page 4 of 7
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 RESPECTFULLY SUBMITTED this 15th day of June, 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 

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual (May 2018) 

§ II (C) (3), Paul J. Cambria, Jr. hereby attests that all other signatories listed, and on whose behalf this filing 

is submitted, concur in the filing’s content and have authorized its filing. 

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 

FEDER LAW OFFICE PA 

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

 Bruce S. Feder 

 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 

Case 2:18-cr-00422-DJH Document 1602 Filed 06/15/23 Page 5 of 7
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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 1602 Filed 06/15/23 Page 6 of 7
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On June 15, 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 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov 

Daniel Boyle, Daniel.boyle2@usdoj.gov 

Austin Berry, austin.berry2@usdoj.gov 

Case 2:18-cr-00422-DJH Document 1602 Filed 06/15/23 Page 7 of 7