DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE 

COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS

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Thomas H. Bienert, Jr. (CA 135311, admitted pro hac vice)

Whitney Z. Bernstein (CA 304917, admitted pro hac vice)

BIENERT | KATZMAN PC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949)369-3701

tbienert@bienertkatzman.com

wbernstein@bienartkatzman.com

Attorneys for James Larkin

Gary S. Lincenberg (admitted pro hac vice)

glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice)

aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice)

gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

[Additional counsel listed on next 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-SMB

DEFENDANTS’ MOTION TO DISMISS 

INDICTMENT BASED ON SECTION 

230 OF THE COMMUNICATIONS 

DECENCY ACT OR, 

ALTERNATIVELY, AS VOID FOR 

VAUGENESS

Case 2:18-cr-00422-DJH Document 783 Filed 10/18/19 Page 1 of 16
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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE 

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

pcambria@lglaw.com

Erin McCampbell (admitted pro hac vice)

emccampbell@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Defendant Michael Lacey

Bruce Feder (AZ Bar No. 004832)

bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135

Attorney for Defendant Scott Spear

David Eisenberg (AZ Bar No. 017218)

david@deisenbergplc.com

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Defendant Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

joy.bertrand@gmail.com

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

Attorney for Defendant Joye Vaught 

Case 2:18-cr-00422-DJH Document 783 Filed 10/18/19 Page 2 of 16
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INTRODUCTION

The instant case must be dismissed based on Section 230 of the Communications 

Decency Act, 47 U.S.C. § 230. The government is prosecuting defendants, all of whom were 

publishers of third-party content on an interactive computer service, under the Travel Act 

for allegedly facilitating state law prostitution offenses by publishing classified ads posted by 

third parties. Superseding Indictment (“SI”), Counts 2-51, at paragraphs 200-201, pp 49-54 

(using words “Publish ad” for each off the 50 counts). 

The Travel Act criminalizes the use of facilities in interstate commerce in furtherance 

of an underlying “unlawful activity.” 18 U.S.C. § 1952(a). The government alleges 

defendants used the mail and facilities in interstate commerce to promote unlawful activity in 

violation of state laws and, in particular: 

prostitution offenses in violation of the laws of the State in which they are 

committed, and of the United States, including but not limited to Title 13, 

Arizona Revised Statutes, Section 13-3214, and thereafter performed and 

attempted to perform an act that did promote . . . and facilitate . . . the 

unlawful activity . . . 

SI at paras 200-201, pp.49-50.1

Under the Travel Act, “[w]hen the unlawful activity charged in the indictment is the 

violation of state law, the commission of or the intent to commit such a violation is an 

element of the federal offense.” United States v. Bertman, 686 F.2d 772, 774 (9th Cir. 1982) 

(citations omitted); see also, United States v. Hiatt, 527 F.2d 1048, 1051 (9th Cir. 1975) (“[T]he 

existence of a state law violation is an element of the violation of the Travel Act and [] the 

court must make a determination of whether the underlying state law has been or could have 

been violated”). “The government thus must prove as part of a Travel Act charge that the 

1 As set forth in Mr. Brunst’s motion to dismiss based on failure to allege necessary 

elements of the Travel Act (Doc. 746), the “unlawful activity” cannot be just “prostitution” in 

violation of state laws, but must be a “business

enterprise involving . . . prostitution offenses in violation of the laws of the State in which they 

are committed”—something the government has not alleged. 

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defendant has or could have violated the underlying state law, and the defendant may assert 

any relevant substantive state law defense.” Bertman, 686 F.2d at 774. 

In the instant case, defendants cannot be found of state prostitution. They are 

publishers, and are not alleged to have acted as pimps, johns or prostitutes. As publishers, 

they were immune from prosecution for violating state laws through publishing third-party 

content on their website. Section 230 of the Communications Decency Act, 47 U.S.C. § 

230. Section 230 of the Communications Decency Act (“CDA”) grants immunity to 

interactive computer services such as Backpage.com for any liability based on publishing 

third-party content or for failing to remove any such content, regardless of any allegations 

that the website knew or should have known known that third-parties were posting illegal 

content. While Section 230 generally does not preempt federal criminal prosecutions, it 

expressly preempts all state criminal laws. Because the instant federal Travel Act charge is 

derivative of the unlawful activity of state prostitution, a charge for which defendant 

publishers are absolutely immune, Section 230 precludes prosecution of this case under the 

federal Travel Act. Because the SI fails to state an offense, the Court should dismiss the case 

pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v). And even if Section 230 

does not preclude a derivative prosecution under the Travel Act, the statutes as applied to 

defendants fail to give adequate notice of criminality and, consequently, the charges must be 

dismissed as void for vagueness.2 

I. SECTION 230 OF THE COMMUNICATIONS DECENCY ACT 

REQUIRES DISMISSAL OF THE INSTANT CASE

2 Federal Rule of Criminal Procedure 12(b) allows consideration at the pretrial stage of 

“[a]ny defense, objection, or request which is capable of determination without the trial of 

the general issue.” Here, Defendants are challenging the Indictment on two grounds that 

can be adjudicated prior to trial: (1) the improper predication of the Travel Act on state 

prostitution claims, against defendants who are immune to prosecution for such claims; and, 

(2) void for vagueness with respect to the use of the Travel Act and state prostitution laws in 

such a matter.

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A. Section 230 immunizes publishers such as Backpage.com and defendants 

from state law prosecution

Section 230(c)(1) states “[n]o provider or user 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). Section 230(e)(3) states “no liability may be 

imposed under any State or local law that is inconsistent with this section.” The statute 

exempts (among others) federal criminal statutes. Id. § 230(e)(1), (2).

Courts have recognized that Section 230 “creates a federal immunity to any cause of 

action that would make service providers liable for information originating with a third-party 

user.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). “[L]awsuits seeking to hold 

a service provider liable for its exercise of a publisher’s traditional editorial functions—such 

as deciding whether to publish, withdraw, postpone or alter content—are barred.” Id. 

Likewise, Section 230 forbids claims against a website “for the exercise of its editorial and 

self-regulatory functions” about whether to block or allow content. Id. at 331. “[A]ny 

activity that can be boiled down to deciding whether to exclude material that third parties 

seek to post online is perforce immune under section 230.” Fair Hous. Council of San Fernando 

Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170-71 (9th Cir. 2008) (en banc) (emphasis 

added); Carafano v. Metrosplash, 339 F.3d 1119, 1124 (9th Cir. 2003) (“[u]nder section 230(c), 

... so long as a third party willingly provides the essential published content, the interactive 

service provider receives full immunity regardless of the specific editing or selection 

process”).

Section 230 immunity applies and protects a website notwithstanding allegations that 

it knew or should have known of unlawful content or conduct, as “[s]ubjecting service 

providers to notice liability would defeat ‘the dual purposes’ of section 230, by encouraging 

providers to restrict speech and abstain from self-regulation.” Zeran, 129 F.3d at 333. “It is, 

by now, well established that notice of the unlawful nature of the information provided is 

not enough to make it the service provider’s own speech.” Universal Comm’n Sys. v. Lycos, 478 

F.3d 413, 420 (1st Cir. 2007). Section 230 provides “an immunity from suit rather than a mere 

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defense to liability.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th 

Cir. 2009) (emphasis in original). As a result, courts uniformly hold that claims against 

online providers based on third-party content should be dismissed at the earliest possible 

opportunity. Roommates.com, LLC, 521 F.3d 1157, 1174, 1175 (9th Cir. 2008) (en banc).

Federal courts have dismissed civil suits against Backpage under section 230. Doe v. 

Backpage.com, LLC, 104 F. Supp. 3d 149, 152, 157 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. 

2016), cert. denied, 137 S. Ct. 622 (2017) (holding that Backpage.com’s editorial choices were 

protected and rejecting claims that its policies sought to promote “illicit sex trade” and 

“trafficking of children”; Backpage’s practices “[s]ingly or in the aggregate ... amount to 

neither affirmative participation in an illegal venture nor active web content creation”; “[t]he 

existence of an escorts section in a classified ad service, whatever its social merits, is not 

illegal”); M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1051, 1053-55 

(E.D. Mo. 2011) (dismissing all claims despite allegations that the website’s structure and 

operation, and Backpage’s alleged knowledge of illegal activity and exercise of editorial 

functions, made it culpable for sex trafficking; “even if a service provider knows that third 

parties are posting illegal content, ‘the service provider's failure to intervene is immunized’”; 

“Congress has decided that the parties to be punished and deterred are not the internet 

service providers but rather are those who created and posted the illegal material”). 

State criminal charges against Backpage and its personnel for facilitating prostitution 

have also been dismissed based on Section 230. After the California Attorney General 

brought criminal pimping charges against Backpage and several of its personnel, the state 

court dismissed the charges based on application of Section 230. People v. Ferrer, No. 

16FE024013 (Cal. Super. Ct. Aug. 23, 2017) (taking into account First Amendment interests, 

holding that Backpage.com’s provision of “a forum for online publishing” and receiving 

payments for ads “qualify as services rendered for legal purposes,” insufficient to support 

charges of pimping, facilitating prostitution or money laundering); People v. Ferrer, 2016 WL 

7237305 (Cal. Super. Ct. Dec. 9, 2016) (dismissing state’s pimping charges against Larkin and 

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COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS

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Lacey premised on allegations they actively furthered prostitution, noting the only “whiff of 

illegality” in the AG’s complaint improperly “require[ed] the presumption that illegal content 

was contained in the ads,” yet the website’s actions in posting the ads “would not be illegal”).

Indeed, multiple federal courts also have applied Section 230 (and the First 

Amendment) to strike down state criminal laws targeting Backpage.com. All three federal 

courts that reviewed state criminal laws aimed at making Backpage criminally responsible for 

the content posted by its users held that the laws were invalid and Backpage.com was 

entitled to immunity under Section 230. Backpage.com v. McKenna, 881 F. Supp. 2d 1262, 1273 

(W.D. Wash. 2012) (striking Washington law imposing liability on Backpage.com for 3rd

party-created information that advertised commercial sex acts); Backpage.com, LLC v. Cooper, 

939 F. Supp. 2d 805, 823 (M.D. Tenn.) (enjoining Tennessee statute because it “impose[d] 

liability on websites such as Backpage.com for selling or offering to sell advertisements, 

activity inherent in their role as publishers”); Backpage.com, LLC v. Hoffman, 2013 WL 

4502097, at 7 (D.N.J. Aug. 20, 2013) (similar law violated Section 230 “by imposing liability

... for information created by third parties—namely ads for commercial sex acts depicting 

minors”).

The instant prosecution of defendants should fare no better because the Travel Act 

charge in this case is based on underlying state prostitution laws. As noted above, Section 

230 generally does not impair enforcement under “federal criminal statute.” This limitation 

would clearly appear to vitiate Section 230 immunity if defendants’ underlying “unlawful 

activity” was a substantive federal crime. But defendants are not charged based on 

underlying federal criminal activity; instead they are being prosecuted based on underlying 

state prostitution offenses.3 Because Section 230 immunizes publishers such as 

3 The Travel Act’s definition of “unlawful activity” includes “a business enterprise 

involving . . . prostitution offenses in violation of the laws of the State in which they are 

committed.” 18 U.S.C. § 1952(b).

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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE 

COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS

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Backpage.com for such acts, defendants could not “have violated the underlying state law.” 

Bertman, 686 F.2d at 774. 

B. Because the defendants’ conviction for the underlying state law offense is a 

legal impossibility, the Travel Act charge cannot be sustained 

As noted above, the criminal activity underlying the Travel Act charges, namely state 

law prostitution offenses, are crimes against which Section 230 immunizes defendants. 

Accordingly, defendants’ conviction for the underlying state law offense on which the Travel 

Act charge is based is, as a matter of law, is a legal impossibility and no Travel Act charge 

can proceed. 

Courts have recognized that the Travel Act is not available to prosecute a defendant 

who could not have committed the underlying crime. In United States v. Fernandez, the First 

Circuit reversed the defendant’s conviction for conspiracy to violate the Travel Act based on 

alleged violations of Puerto Rico bribery law and directed the district court to enter a 

judgment of acquittal. See 722 F.3d 1 (1st Cir. 2013). The First Circuit held that the 

defendant’s conviction was a “legal impossibility” because the travel underlying the charge 

was to take place on a date nearly 2 weeks after Puerto Rico repealed the bribery laws 

underpinning the Travel Act charges, so no statute prohibited the defendant’s conduct on 

the date he planned to engage in it. See id. at 31-32 (“In short, Defendants were ‘conspiring’ 

to do something that would not be prohibited by these Puerto Rico bribery laws on the date 

they planned to do it”). According to the First Circuit, “with respect to the Puerto Rico 

bribery basis for the alleged Travel Act violation, ‘since the conduct allegedly underlying the 

conspiracy was not a crime, no ... conspiracy to commit that conduct can exist either.’” Id. at 

32, citing United States v. Ali, 561 F. Supp. 2d 265, 267 (E.D.N.Y. 2008). In the instant case, 

regardless of whether those committing actual acts of prostitution or illegal sex trafficking 

can be charged and convicted, a publisher is immune under Section 230 from prosecution 

under state law for its publication of advertisements by such persons. In short, “the conduct 

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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE 

COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS

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allegedly underlying the conspiracy was not a crime” as to a publisher, so prosecution of a 

publisher is a legal impossibility. 

Similarly, in United States v. Tonry, 837 F.2d 1281 (5th Cir. 1988), the Fifth Circuit 

vacated the defendant’s conviction and sentence for conspiracy to violate the Louisiana 

Commercial Bribery statute and two substantive violations of the Travel Act. The 

government alleged that the defendant had bribed a chairman of a Native American tribe to 

induce him to sign a bingo contract and traveled from New Orleans to the Bureau of Indian 

Affairs in Washington D.C. to facilitate the approval of the contract. Id. at 1281-82. The 

Fifth Circuit held that the Louisiana Commercial Bribery statute did not reach bribery of 

non-Louisiana public officials and, therefore, the defendant was not guilty of violating the 

Travel Act. See id. at 1284-85 (“Tonry committed no crime under Louisiana law. In so 

holding, we do not condone Tonry's behavior. The bribing of anyone is certainly ethically 

and morally repugnant. However, in this case, it was not illegal”). The Tonry case is 

particularly instructive because, as in the instant case, a valid criminal state law exists that 

could apply to certain wrongdoers but that law could not apply to the defendant in the case, 

making Travel Act prosecution invalid. 

Even more on point, although stated in dicta in a case involving different issues, in 

United States v. Costello, 307 F.3d 553, 555 (7th Cir. 2002), the Seventh Circuit observed what 

would seem to be the common sense notion that “section 1952 [Travel Act prosecution] is 

confined to illegal prostitution, and so would not apply to prostitution in the handful of 

counties in Nevada in which brothels are legal.” If one cannot be prosecuted under the 

Travel Act for travelling to a place where prostitution is legal under state law, one also 

cannot be charged under the Travel Act for publishing activity related to alleged prostitution 

for which the defendants have absolute immunity.

Indeed, the government and other actors for the government recognized that the 

federal statutes simply didn’t allow prosecution of defendants. For example, Ernie Allen, the 

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former President of the National Center for Missing & Exploited Children (NCMEC)4

wrote about his efforts to get federal and state prosecutors to take action against Backpage 

based on its “facilitation” of prostitution: 

Two years ago, I met with Attorney General Eric Holder on this. The sites 

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. I asked how anyone could argue that the 

operators of these sites didn’t know the purpose for which they were used. 

The Attorney General sent some Criminal Division prosecutors over to meet 

with me, and I laid out my arguments. They concluded that the mens rea 

standard (the legal standard that requires that an act 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.

So, I began to speak to state AGs and District Attorneys. I met with lots of 

them. What I found is there are a number of prosecutors who are eager to 

bring these prosecutions and think they are a “slam dunk.” However, they 

feel they are barred by the language of Section 230 of the Communications 

Decency Act, which effectively creates preemption for the federal government 

and precludes state prosecution.

Exhibit A, Email from Ernie Allen, July 19, 2013.

4 As noted in Defendants Motion for Production of Brady Material, filed the same day 

as this motion, NCMEC is an organization that has repeatedly been held to be an agent of 

the government. 

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Mr. Allen’s email makes clear that he and prosecutors recognized full well what court 

holdings and statutes demonstrate: Backpage’s publishing did not violate available federal 

statutes and prosecution under state laws was barred by Section 230. 

II. EVEN IF NOT PRECLUDED, THE INTERSTATE TRAVEL ACT 

WHEN COMBINED WITH THE UNDERLYING STATE 

PROSTITUTION OFFENSE IS VOID FOR VAGUENESS

At a minimum, the application of the Travel Act in the instant case is fatally vague 

and must be dismissed on that basis. “A criminal statute must clearly define the conduct it 

proscribes.” United States v. Skilling, 561 U.S. 358, 415 (2010) (Scalia, J., concurring in part) 

(citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). “Overly vague penal statutes 

violate due process.” United States v. Twombly, 475 F. Supp. 2d 1019, 1022 (S.D. Cal. 2007). 

“A criminal statute is void for vagueness if it is ‘not sufficiently clear to provide guidance to 

citizens concerning how they can avoid violating it and to provide authorities with principles 

governing enforcement.’” United States. v. Zhi Yong Guo, 634 F.3d 1119, 1121 (9th Cir. 2011) 

(quoting United States v. Jae Gab Kim, 449 F.3d 933, 942 (9th Cir. 2006)). In other words, “[a] 

statute is unconstitutionally vague on its face if it ‘fails to provide a person of ordinary 

intelligence fair notice of what is prohibited, or is so standardless that it authorizes or 

encourages seriously discriminatory enforcement.’” United States v. Kilbride, 584 F.3d 1240, 

1257 (9th Cir. 2009) (quoting United States v. Williams, 553 U.S. 285, 304 (2008). 

“The statute will meet the requirement of ‘certainty required by the Constitution if its 

language conveys sufficiently definite warning as to the proscribed conduct when measured 

by common understanding and practices.’” Panther v. Hames, 991 F.2d 576, 578 (9th Cir. 

1993) (quoting Turf Center, Inc. v. United States, 325 F.2d 793, 795 (9th Cir.1963)). “Our 

doctrine prohibiting the enforcement of vague laws rests on the twin constitutional pillars of 

due process and separation of powers.” United States v. Davis, 139 S. Ct. 2319, 2325 (2019) 

(citation omitted). “Vague laws contravene the first essential of due process of law that 

statutes must give people of common intelligence fair notice of what the law demands of 

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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE 

COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS

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them.” Id. (citations and quotations omitted). “Vague laws also undermine the Constitution’s 

separation of powers and the democratic self- governance it aims to protect . . . [by] 

threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police, 

prosecutors, and judges, eroding the people's ability to oversee the creation of the laws they 

are expected to abide.” Id. (citations omitted). 

“[T]he requirement for clarity is enhanced” for prosecutions involving the First 

Amendment. Kilbride, 584 F.3d at 1257 (quoting Information Providers’ Coalition for the Defense of 

the First Amendment v. FCC, 928 F.2d 866, 874 (9th Cir. 1991)). “‘[O]rdinarily a [party] who 

engages in some conduct that is clearly proscribed cannot complain of the vagueness of the 

law as applied to the conduct of others’”; however, the Supreme Court has “‘relaxed that 

requirement in the First Amendment context.’” Kilbride, 584 F.3d at 1257 (quoting Williams, 

553 U.S. at 304). “A statute is unconstitutionally vague as applied if it failed to put a 

defendant on notice that his conduct was criminal.” Kilbride, 584 F.3d at 1257 (citing United 

States v. Purdy, 264 F.3d 809, 811 (9th Cir. 2011) (emphasis added)). “An as-applied 

vagueness claim is viable when a particular application of an otherwise-permissible statute 

stretches the breadth of the statute further than could be reasonably anticipated.” Acosta v. 

Huppenthal, No. CV 10-623-TUC-AWT, 2013 WL 871892, at *12 (D. Ariz. Mar. 8, 2013) 

(citing Kilbride, 584 F.3d at 1257), aff’d in part, rev’d in part on other grounds, and remanded by Arce 

v. Douglas, 793 F.3d 968 (9th Cir. 2015). An as-applied challenge can be ruled on at the pretrial stage. See, e.g., United States v. Wright, No. 2:14-cr-357-APG-VCF, 2015 WL 9958034 (D. 

Nev. Dec. 24, 2015), report and recommendation adopted by 2016 WL 438957.

Defendants in this action did not have fair and reasonable warning that their 

publishing conduct could violated the Travel Act as applied to potential state law 

prostitution offenses. Section 230 indicates and cases interpreting it expressly find that 

publishers have immunity for prosecution “under any state or local law.” The Travel Act 

itself indicates it can only proceed if linked with “unlawful activity.” See 18 U.S.C. § 1952(a), 

(b). In the case of prostitution, the defendants are immune for their conduct being 

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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE 

COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS

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“unlawful” as it relates to publishing ads of third parties. The Travel Act and Section 230 do 

not put defendants on notice that their conduct was criminal. 

The statute’s vagueness is only highlighted when applied to defendants. They were 

repeatedly on notice by numerous courts that their publishing of third-party content at 

Backpage was not illegal, because they had immunity from prosecution for state crimes based 

on their publishing of third-party content. Moreover, they were engaged in conduct that 

Congress, through the Communications Decency Act, sought to incent—and it makes no 

sense that Congress would create a statutory scheme to incent certain conduct, but also 

allow that conduct to be prosecuted under a federal law that bootstraps federal criminal 

liability from a state crime for which a defendant was immunized from prosecution. Far 

from meeting the requirement that notice provide “guidance . . . concerning how 

[defendants] can avoid violating [the statutes]” and “provide authorities with principles 

governing enforcement,” Zhi Yong Guo, 634 F.3d at 1121, numerous court decisions 

informed defendants that their publishing was legal and defendants knew they were immune 

from prosecution on state law theories, like prostitution offenses. 

If Department of Justice lawyers specifically tasked by the Attorney General to assess 

whether Backpage could be prosecuted under Federal law concluded that Federal law did 

not permit such a prosecution, see Exhibit A, how would a person of ordinary intelligence 

fairly conclude that he was at risk of prosecution for engaging in the same conduct that 

prosecutors concluded was not proscribed? 

The Travel Act charges, Counts 2-51 of the SI, must be dismissed as impermissibly 

vague as applied to defendants. 

III. THE CONSPIRACY AND MONEY LAUNDERING CHARGES MUST 

BE DISMISSED 

If the Travel Act counts are dismissed, then the conspiracy charge (Count 1) and the 

money laundering counts (Counts 52 to 100) also must be dismissed. 

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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE 

COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS

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The conspiracy and money laundering counts are based on the alleged prostitution 

underpinning the Travel Act violations. The alleged conspiracy was to commit “Travel Act 

– Facilitate Prostitution.” SI at para 196, p. 49. The purportedly laundered money allegedly 

came from prostitution. E.g., SI at para 177, p. 44. (“Backpage’s customers 

overwhelmingly used the proceeds from criminal activity (i.e., money earned from pimping 

and prostitution) when purchasing ads on Backpage. In addition, because Backpage’s 

publication of such ads was an independent crime (e.g., violation of 18 USC section 1952), 

the fees it collected from customers posting prostitution ads – estimated at more than $500 

million – constituted proceeds of unlawful activity.”) 

When the Travel Act counts fail, the other counts based on the same alleged conduct 

necessarily fail. 

CONCLUSION

The Superseding Indictment is entirely premised on the theory that defendants 

publishing activities promoted prostitution in violation of state laws. Given that defendants 

are immune from prosecution under state laws for their publishing activities, the charges in 

the Superseding Indictment must be dismissed. 

DATED: October 18, 2019 BIENERT | KATZMAN PC

/s/ Thomas H. Bienert, Jr.

Thomas H. Bienert, Jr.

Whitney Z. Bernstein

Attorneys for James Larkin

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures

Manual (May 2018) § II (C) (3), Thomas H. Bienert, Jr. herby 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.

Case 2:18-cr-00422-DJH Document 783 Filed 10/18/19 Page 14 of 16
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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE 

COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS

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DATED: October 18, 2019 Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C.

By: /s/ Ariel A. Neuman

Ariel A. Neuman

Attorneys for John Brunst

DATED: October 18, 2019 Paul J. Cambria, Jr.

Erin E. McCampbell 

LIPSITZ GREEN SCIME CAMBRIA LLP

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

Paul J. Cambria, Jr.

Attorneys for Michael Lacey

DATED: October 18, 2019 Bruce Feder

FEDER LAW OFFICE, P.A.

By: /s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

DATED: October 18, 2019 David Eisenberg

DAVID EISENBERG, P.L.C.

By: /s/ David Eisenberg

David Eisenberg

Attorneys for Andrew Padilla

DATED: October 18, 2019 Joy Bertrand

JOY BERTRAND, ESQ.

By: /s/ Joy Bertrand

Joy Bertrand

Attorneys for Joye Vaught

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CERTIFICATE OF SERVICE

I certify that on this 18th day of October, 2019, I electronically transmitted a PDF 

version of this document to the 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 listed 

below. 

s/ Toni Thomas

Toni Thomas

Anne Michelle Chapman, anne@mscclaw.com 

Erin E. McCampbell, emccampbell@lglaw.com 

Anthony R. Bisconti, tbisconti@bienertkatzman.com 

Ariel A. Neuman, aan@birdmarella.com 

Bruce S. Feder, bf@federlawpa.com 

James C. Grant, jimgrant@dwt.com 

Lee David Stein, lee@mscclaw.com 

Paul J. Cambria, pcambria@lglaw.com 

Robert Corn-Revere, bobcornever@dwt.com 

Ronald Gary London, ronnielondon@dwt.com 

Janey Henze Cook, janey@henzecookmurphy.com 

John Lewis Littrell, jlittrell@bmkattorneys.com 

Seetha Ramachandran, Seetha.Ramachandran@srz.com 

Thomas H. Bienert, Jr. tbienert@bienertkatzman.com 

Whitney Z. Bernstein, wbernstein@bienertkatzman.com 

Gary S. Lincenberg, glincenberg@birdmarella.com 

Gopi K. Panchapakesan, gpanchapakesan@birdmarella.com 

Michael D. Kimerer, mdk@kimerer.com 

Rhonda Elaine Neff, rneff@kimerer.com 

David S. Eisenberg, david@deisenbergplc.com 

Joy Malby Bertrand, joyous@mailbag.com 

John Jacob Kucera, john.kucera@usdoj.gov 

Kevin M. Rapp, Kevin.Rapp@usdoj.com 

Margaret Wu Perlmeter, Margaret.perlmeter@usdoj.gov 

Reginald E. Jones, reginald.jones4@usdoj.gov 

Peter Shawn Kozinets, Peter.Kozinets@usdoj.gov 

Andrew C. Stone, andrew.stone@usdoj.gov

Case 2:18-cr-00422-DJH Document 783 Filed 10/18/19 Page 16 of 16