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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 

Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice) 

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice) 

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice) 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW PC 

1875 Century Park East, 23rd Floor 

Los Angeles, California 90067-2561 

Telephone: (310) 201-2100 

Facsimile: (310) 201-2110 

glincenberg@birdmarella.com 

aneuman@birdmarella.com 

gpanchapakesan@birdmarella.com 

Attorneys for 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. 

NO. CR-18-00422-PHX-DJH 

OBJCTION TO THE COURT’S 

PROPOSED JURY INSTRUCTION 

RELATING TO THE FIRST 

AMENDMENT 

 

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Eric Kessler 

KESSLER LAW GROUP 

6720 N. Scottsdale Rd., Suite 210 

Scottsdale, AZ 85253 

Telephone: (480) 644-0093 

eric@kesslerlawgroup.com 

Attorney for Scott Spear

Bruce Feder (AZ Bar No. 004832) 

FEDER LAW OFFICE PA 

2930 E. Camelback Road, Suite 160 

Phoenix, Arizona 85016 

Telephone: (602) 257-0135 

bf@federlawpa.com 

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218) 

DAVID EISENBERG PLC 

3550 N. Central Ave., Suite 1155 

Phoenix, Arizona 85012 

Telephone: (602) 237-5076 

Facsimile: (602) 314-6273 

david@deisenbergplc.com 

Attorney for Andrew Padilla 

Joy Malby Bertrand (AZ Bar No. 024181) 

JOY BERTRAND ESQ LLC 

P.O. Box 2734 

Scottsdale, Arizona 85252 

Telephone: (602)374-5321 

Facsimile: (480)361-4694 

joy.bertrand@gmail.com 

Attorney for Joye Vaught

 

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 The Court’s proposed jury instruction relating to the First Amendment reads: 

All speech is presumptively protected by the First Amendment to the United 

States Constitution. Accordingly, you must presume that speech is protected. 

Speech relating to illegal activity, however, is not protected. Prostitution is illegal in 49 

states and most of Nevada. Therefore, advertisements or solicitations for prostitution 

have no protection. The government has the burden to establish that the 

particular expressions of speech at issue are not protected by the First 

Amendment. You may consider any direct or circumstantial evidence in 

assessing whether any ads in this case related to illegal activity. (emphasis added). 

As discussed below, Defendants object to the italicized portions of the instruction as being 

inconsistent with decisions of the United States Supreme Court, the Ninth Circuit, and other 

courts. 

1. The Ninth Circuit Uses the Phrase “Speech Relating to Illegal Activity” As a 

Shorthand Reference to Supreme Court’s Decisions, Not As a Constitutional 

Standard To Be Applied to a Publisher of Third-Party Speech. 

A. The Supreme Court’s Decisions in Pittsburgh Press, Central Hudson, and Williams Apply Narrowly to Speech That Itself Proposes Illegal 

Transactions and to Criminal Solicitation—Not to All Speech “Related” 

to Illegal Activity. 

 In Pittsburgh Press, the Pittsburgh Press Co. was charged with violating a city ordinance 

prohibiting the publication of sex-designated “help wanted” ads, by allowing employment 

ads to be posted in its daily newspaper under headings designating employment preferences 

by sex (e.g., “‘Male Help Wanted,’ ‘Female Help Wanted,’ and ‘Male-Female Help Wanted’). 

Pitt. Press Co. v. Pitt. Comm. on Human Relations, 413 U.S. 376, 377-80 (1973). The Pittsburgh 

Press asserted that the city ordinance violated the First Amendment by restricting its 

editorial judgment. The Supreme Court rejected newspaper’s position, saying: 

“We have no doubt that a newspaper constitutionally could be forbidden to 

publish a want ad proposing a sale of narcotics or soliciting prostitutes. Nor 

would the result be different if the nature of the transaction were indicated by 

placement under columns captioned ‘Narcotics for Sale’ and ‘Prostitutes 

Wanted’ rather than stated within the four corners of the advertisement...Any 

First Amendment interest which might be served by advertising an ordinary 

commercial proposal...is altogether absent when the commercial activity itself is 

illegal and the restriction on advertising is incidental to a valid limitation on 

economic activity.” 

Id. at 388-89 (emphasis added). The Supreme Court concluded, saying: “We hold only that 

the Commission’s modified order, narrowly drawn to prohibit placement in sex-designated 

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columns of advertisements for nonexempt job opportunities, does not infringe the First 

Amendment rights of Pittsburgh Press.” Id. at 391. The Supreme Court’s holding in 

Pittsburgh Press only goes so far as to say that the First Amendment does not protect a 

publisher’s knowing publication of classified ads that are per se unlawful (whether because the 

content of the ads proposes facially unlawful transactions or because the ads were posted in 

per se unlawful categories). Id. at 388-89, 391. The Supreme Court’s decision cannot be read 

to suggest that the government could forbid, or prosecute a newspaper or website for, 

publishing facially lawful advertisements in lawful categories because those ads might be 

related to unlawful activity—such as an employer soliciting job applications with facially lawful 

ads but then discriminating based on sex when hiring employees. 

 Later, in Cent. Hudson Gas & Elec. Corp. v. Pub. Svc. Comm., 447 U.S. 557 (1980), the 

Supreme Court referred to its holding in Pittsburgh Press as addressing “speech related to 

illegal activity,” but those five words of dicta in Central Hudson merely were a shorthand 

characterization of Pittsburgh Press—not a sweeping expansion of its narrow holding.1

 In United States v. Williams, 553 U.S. 285, 288 (2008), the Supreme Court considered 

whether a federal statute criminalizing the “solicitation of child pornography” was 

unconstitutional for being “overbroad under the First Amendment.” That statute, 18 U.S.C. 

§ 2252A(a)(3)(B), “criminalize[d] only offers to provide or requests to obtain contraband—

child obscenity and child pornography involving actual children, both of which are 

proscribed and the proscription of which is constitutional.” Id. at 297. In holding the 

statute constitutional, the Supreme Court again relied on Pittsburgh Press: 

“Offers to engage in illegal transactions are categorically excluded from First 

Amendment protection. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human 

Relations, 413 U.S. 376, 388 [] (1973)... [T]he rationale for the categorical 

 

1 Indeed, the entirety of the Supreme Court’s discussion of Pittsburgh Press in Central Hudson

was: “The government may ban forms of communication more likely to deceive the public 

than to inform it, Friedman v. Rogers, supra, at 13, 15–16, 99 S.Ct., at 896, 897; Ohralik v. Ohio 

State Bar Assn., supra, at 464–465 [], or commercial speech related to illegal activity, Pittsburgh 

Press Co. v. Human Relations Comm’n, 413 U.S. 376, 388 [] (1973).” Cent. Hudson, 447 U.S. at 

563-64. As such, the Supreme Court’s five-word, shorthand description of the holding in 

Pittsburgh Press must be read as addressing speech proposing a facially illegal transaction. 

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exclusion...is based...on the principle that offers to give or receive what it is unlawful 

to possess have no social value and thus, like obscenity, enjoy no First 

Amendment protection, see Pittsburgh Press, supra, at 387–389, 93 S.Ct. 2553.” 

(emphasis added). The Supreme Court’s holding in Williams was narrow and applied only to 

offers to give or obtain contraband, which necessarily is unlawful—not to facially lawful 

speech “relating to illegal activity.” 

 In sum, Pittsburgh Press teaches only that advertisements for a “commercial activity 

[that] itself is illegal” are unprotected by the First Amendment, Central Hudson’s dicta adds 

nothing to the holding in Pittsburgh Press, and Williams holds only that criminal solicitations of 

contraband are unprotected. Nothing in these decisions suggests that speech proposing a 

lawful transaction—such as a dating ad, a massage ad, or an escort ad—is unprotected if the 

party proposing the facially lawful transaction ultimately uses such an ad as a prelude to 

proposing and consummating an unlawful transaction. 

B. The Ninth Circuit Has Narrowly Construed Pittsburgh Press, Central 

Hudson, and Williams, Focusing on the Content of the Speech and Not 

Any Conduct Associated with the Speech. 

The Ninth Circuit has narrowly construed Pittsburgh Press, Central Hudson, and Williams

as applying to speech expressly proposing illegal transactions. The Ninth Circuit also has 

expressly rejected the contention that facially lawful speech that might facilitate the illegal 

activity of third parties falls outside the scope of the First Amendment. 

First, in Metro Lights, L.L.C. v. City of L.A., 551 F.3d 898, 904 n.7 (9th Cir. 2009), a case 

involving commercial advertising, the Ninth Circuit narrowly construed Central Hudson’s 

language “related to unlawful activity” to mean “whether the goods or services the party 

advertises are illegal.” In particular, the Ninth Circuit said the district court: 

“relied in part on the observation that ‘[a]dvertising is undisputably a lawful 

activity.’ That is not the point, since not all advertisements receive First 

Amendment protection. Central Hudson asks if the commercial speech is 

“related to unlawful activity.” 447 U.S. at 564. Thus, in the context of advertising, 

one must ask whether the goods or services the party advertises are illegal. 

Id. (emphasis added). 

 F our years later, in Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013), the Ninth 

Circuit again narrowly construed Pittsburgh Press and Central Hudson as focusing on the content 

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of the speech at issue and whether that content proposes an illegal transaction: 

“Commercial speech merits First Amendment protection only if ‘the 

communication is neither misleading nor related to unlawful activity.’ Arizona 

argues that the day labor provisions are permissible because they regulate 

speech only when associated with the unlawful activity of blocking or 

impeding traffic. Arizona’s proposed rule would be a novel extension of 

Central Hudson’s legality requirement, which has traditionally focused on the 

content of affected speech - i.e., whether the speech proposes an illegal transaction - instead of 

whether the speech is associated with unlawful activity.... Some decisions have 

expressly phrased the legality requirement as whether ‘the transactions proposed in 

the forbidden [communication] are themselves illegal in any way.’...However it is 

formulated, we think it clear that Central Hudson’s legality requirement 

requires us to evaluate the content of a commercial message ... Nothing in Pittsburgh 

Press or any other case Arizona cites suggests that we should expand our 

inquiry beyond whether the affected speech proposes a lawful transaction to whether the 

affected speech is conducted in a lawful manner.” 

Id. at 821-22 (emphasis added). 

In 2020, the Ninth Circuit reiterated its holdings in Metro Lights and Valle del Sol, 

construing Pittsburgh Press as applying only to speech that itself proposes an illegal transaction 

(i.e. speech proposing a facially illegal transaction), while also emphatically rejecting the 

Screen Actors Guild’s contention that Pittsburgh Press applies to facially lawful speech “that 

facilitates illegal conduct:” 

Pittsburgh Press implicates only those instances when the state restricts speech that 

itself proposes an illegal transaction. See, e.g., United States v. Williams, 553 U.S. 285, 

297 [] (2008) (“Offers to engage in illegal transactions are categorically excluded 

from First Amendment protection.” (citing Pittsburgh Press Co., 413 U.S. at 388 

[])); Valle Del Sol Inc., 709 F.3d at 822 (“Nothing in Pittsburgh Press...suggests 

that we should expand our inquiry beyond whether the affected speech 

proposes a lawful transaction....”)....If accepted, SAG’s interpretation of 

Pittsburgh Press would require this court to permit the restriction not only of 

speech that proposes an illegal activity but also facially inoffensive speech that 

a third-party might use to facilitate its own illegal conduct. But as the 

Supreme Court has noted, ‘it would be quite remarkable to hold that speech 

by a law-abiding possessor of information can be suppressed in order to deter 

conduct by a non-law-abiding third party.’ Bartnicki v. Vopper, 532 U.S. 514 [] 

(2001)...” 

IMDb.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020) (emphasis added).2 

 

2 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 

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 In sum, despite the seemingly broad language in Central Hudson (“speech related to 

illegal activity”) and Williams (“offers to engage in illegal transactions”), the Ninth Circuit has 

held that language must be narrowly construed as applying only to either speech that itself

proposes an illegal transaction or to speech that constitutes criminal solicitation—not to 

speech that might be related to an illegal transaction. Moreover, in IMDB the Ninth Circuit 

expressly rejected the argument that Pittsburgh Press permits the government to criminalize 

the publication of facially inoffensive speech on the grounds that a third-party might use that 

speech to facilitate its own illegal conduct—yet that rejected concept is the cornerstone of 

the government’s case. 

C. Even if a Charged Ad Is Construed As a Criminal Solicitation, the First 

Amendment Nonetheless Protects the Publisher of Such Third-Party 

Speech 

 As the Court will learn at trial, forty-nine of the fifty charged ads propose facially 

lawful dating, massage, and escorting transactions and, as such, are not themselves “offers to 

engage in illegal transactions” or criminal solicitations. Nonetheless, even if those ads are 

construed to be unprotected criminal solicitations made by the persons posting the ads (or 

unprotected speech incident to their criminal conduct), that does not mean Backpage.com’s 

publication of those third-party ads was outside of the protection of the First Amendment. 

Backpage.com, L.L.C. v. McKenna, 881 F. Supp. 2d 1262, 1280-81 (W.D. Wash. 2012). 

 In McKenna, the State of Washington passed a statute targeting Backpage.com that 

criminalized the publication of any content containing “any ‘explicit or implicit offer’ of sex 

for ‘something of value’” depicting a minor. Id. at 1268. In defending its statute from a 

constitutional challenge, the state claimed that “all online advertisements for escort services 

actually are offers for prostitution” and argued that the statute reached “only offers to 

engage in illegal conduct.” Id. at 1282. The court rejected the state’s claim that the statute 

reached “only offers to engage in illegal conduct,” holding that the statute did “not fall 

within the exception for offers to engage in illegal activity” because the statute “prohibit[ed] 

 

protected commercial speech.”) (emphasis in original); accord Greater Philadelphia Chamber of 

Comm. v. City of Philadelphia, 949 F.3d 116, 142 & n.170 (3d Cir. 2020) (similar). 

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not only ‘offers’ to engage in commercial sex acts, but also the direct and indirect 

publication, dissemination, and display of such offers.” Id. at 1280-81. In making the clear 

constitutional distinction between offers to engage in illegal transactions and the publication 

of those offers by a third-party website, the court held: “The third-party 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.” Id. at 1281. In other 

words, even if the poster of an ad would have been unprotected by the First Amendment 

because the ad constituted an offer to engage in an illegal transaction, a third party website 

publishing that ad nonetheless would be protected by the First Amendment (absent another 

exception under the First Amendment, such as publishing the ad in a manner that would 

constitute aiding and abetting under traditional accomplice liability principles). To be clear, 

this aspect of the holding in McKenna is based on the First Amendment, not the 

Communications Decency Act. Therefore, this principle articulated in McKenna is equally 

applicable here. 

 Further, the focus in the proposed First Amendment instruction on the activities

associated with speech, rather than on the content of the speech itself, would leave a publisher 

of third-party speech with no means to distinguish between protected speech and 

unprotected speech, since that distinction could not be discerned from the content of the 

speech (i.e. “whether the speech proposes an illegal transaction”), but instead would require 

the publisher to have advance knowledge of the activities of the person posting each ad (i.e.

“whether the speech is associated with unlawful activity”). Valle del Sol, 709 F.3d at 822. In 

McKenna, the court rejected the idea that the First Amendment allows a publisher to “be put 

at complete peril in distinguishing between protected and unprotected speech” and struck 

down a Washington statute that attempted to impose such a quandary on publishers of 

third-party adult advertising by criminalizing the publication of any content containing “any 

‘explicit or implicit offer’ of sex for ‘something of value’” depicting a minor. Id. at 1282. 

The court held that the Washington legislature’s attempt to present such a “Hobson’s choice 

to website operators like Backpage.com” with the aim of forcing it to “ceas[e] the posting of 

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advertisements for commercial sex acts altogether” was unconstitutional. Id. Explaining its 

reasoning, the court said: 

“The pimp that publishes the advertisement certainly ‘knows’ whether his 

offer is for sex, whether explicitly or implicitly. However, what does it mean 

for the website operator to ‘know’ that an advertisement ‘implicitly’ offers sex? 

In Washington, ‘a person acts knowingly or with knowledge when ... he or she 

has information which would lead a reasonable person in the same situation to 

believe that facts exist which facts are described by a statute defining an 

offense.’ Wash. Rev. Code Ann. § 9A.08.010(b)(ii). However, where an 

online service provider publishes advertisements that employ coded language, 

a reasonable person could believe that facts exist that do not in fact exist: an 

advertisement for escort services may be just that....[Also] if [an] offer is 

implicit, how can a third-party ascertain that which is being offered before the 

transaction is consummated?” 

Id. at 1279; accord Backpage.com, L.L.C. v. Cooper, 939 F. Supp. 2d 805, 834 (M.D. Tenn. 2013); 

Backpage.com, L.L.C. v. Hoffman, 2013 WL 4502097, at *10 (D.N.J. Aug. 20, 2013) 

(“Describing criminal conduct as anything that is ‘implicit’ is inherently vague, because it 

means ‘[n]ot directly expressed [and] existing [only] inferentially’ and ‘fails to clearly mark the 

boundary between what is permissible and impermissible.’... [L]aws regulating speech are 

void for vagueness when they are so ambiguous that a reasonable person cannot tell what 

expression is forbidden and what is allowed...”).

 Unlike the statutes held to be facially unconstitutional in McKenna, Cooper, and 

Hoffman, the Travel Act is a law of general applicability that does not directly target speech. 

But that does not mean that the Travel Act escapes First Amendment scrutiny if used to 

target speech, as the government seeks to do here. People for the Ethical Treatment of Animals, 

Inc. v. N.C. Farm Bureau Fed’n, Inc., 60 F.4th 815, 827-28 (4th Cir. 2023) (“[A] State may not 

harness generally applicable laws to abridge speech without first ensuring the First 

Amendment would allow it.... Laws cast in broad terms can restrict speech as much as laws 

that single it out.... General or not, the First Amendment applies when [a statute] is used to 

silence protected speech.”). 

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 RESPECTFULLY SUBMITTED this 2nd day of August, 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 (Jan. 

2020) § II (C) (3), Paul J. Cambria 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.

Gary S. Lincenberg 

Gopi K. Panchapakesan 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C. 

By: /s/ Gary Lincenberg 

Gary Lincenberg 

Attorneys for John Brunst 

Eric W. Kessler 

KESSLER LAW OFFICE 

By: /s/ Eric W. Kessler 

 Eric W. Kessler 

 Attorneys for Scott Spear 

Bruce Feder 

FEDER LAW OFFICE, P.A. 

By: /s/ Bruce Feder 

Bruce Feder 

Attorneys for Scott Spear 

David Eisenberg 

DAVID EISENBERG, P.L.C. 

By: /s/ David Eisenberg 

David Eisenberg 

Attorneys for Andrew Padilla 

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 Joy Bertrand 

JOY BERTRAND, ESQ. 

By: /s/ Joy Bertrand 

Joy Bertrand 

Attorneys for Joye Vaught 

On August 2, 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 to the CM/ECF registrants who have 

entered their appearance as counsel of record 

Case 2:18-cr-00422-DJH Document 1657 Filed 08/02/23 Page 11 of 11