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Jessica Ring Amunson (pro hac vice)

Tassity Johnson (pro hac vice forthcoming)

JENNER & BLOCK LLP

1099 New York Avenue NW Ste 900

Washington, DC 20001

jamunson@jenner.com

tjohnson@jenner.com

Attorneys for the DKT Liberty Project, 

Cato Institute, and Reason Foundation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v.

Michael Lacey, et al., 

Defendants.

No. CR-18-422-PHX-SRB

[PROPOSED] BRIEF OF AMICI

CURIAE THE DKT LIBERTY 

PROJECT, CATO INSTITUTE, AND 

REASON FOUNDATION IN 

SUPPORT OF MOTION TO DISMISS 

THE INDICTMENT

The DKT Liberty Project, Cato Institute, and Reason Foundation, by and through 

counsel, submit this Brief as Amici Curiae in support of the Defendants’ Motion to 

Dismiss the Indictment. Amici are nonprofit organizations dedicated to protecting 

individual liberties, and especially those liberties guaranteed by the Constitution of the 

United States, against all forms of government interference. Amici have a particular 

interest in this case because the government’s indictment threatens to silence Defendants

for offering a forum for protected sexually oriented speech, by simply assuming, without 

establishing, that the First Amendment does not protect the speech on Backpage.com. 

The government’s prosecution of Defendants as publishers of third-party speech poses a 

grave threat to individual liberty and the rights guaranteed by the First Amendment. 

Amici submit that their expressed views may assist the Court in its task of deciding 

Defendants’ Motion to Dismiss the Indictment. 

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I. INTRODUCTION

This case presents questions of critical importance under the First Amendment that 

are of great concern to Amici. The Supreme Court has held that the Constitution 

presumptively protects all speech from government infringement. The burden for 

rebutting that presumptive protection rests with the government. It is a heavy burden, as 

it must be to safeguard the protections of the First Amendment. As a consequence, the

government may not prosecute a speaker for his or her speech unless and until the 

government establishes that the speech is not protected. To ensure a robust, thriving 

marketplace of ideas, this presumption must reach even unpopular speech, such as the 

sexually oriented speech featured in advertisements on Backpage.com. The indictment, 

however, turns this basic presumption on its head by simply assuming the illegality of the 

speech on Backpage.com solely because it looks like speech that might concern illegal 

conduct. 

Amici write to amplify the danger that the government’s inversion of the 

constitutional presumption protecting speech poses to free expression. The government 

has indicted Defendants, exposing them to costly prosecution and potential prison 

sentences and fines, on nothing more than the government’s spurious assumption that 

third-party speech on Backpage.com that resembled unlawful speech was unlawful 

speech. The government, moreover, has charged Defendants with criminal liability for 

speech engaged in by third-party advertisers on Backpage.com without alleging that 

Defendants had anything more than general knowledge of the alleged unlawfulness of 

such speech. Absent a meaningful judicial check on the government here, nothing can 

stop it from prosecuting other speakers by shifting its burden to rebut the First 

Amendment’s presumptive protection of speech to the speakers themselves, or from

prosecuting publishers for their generic knowledge of third-party misconduct. Though the

government will certainly argue that it has met its minimal standards for pleading an 

indictment, judicial vigilance should be at its height when the First Amendment is at 

stake. Perhaps no act of government is more inimical to free and open expression than 

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prosecution—and thus the possible loss of liberty and property—for simply offering a 

forum for speech. 

Unfortunately, the government’s conduct here is not new. The history of 

government efforts to suppress and censor disfavored speakers, particularly speakers who 

offer sexually oriented expressive materials, is long. Along with overseeing censorship 

boards and organizing adult bookstore raids, the government has previously mounted a 

multistate prosecutorial campaign designed to intimidate the adult entertainment 

industry—including the founder of one of the Amici—into silence. See United States v. 

PHE, Inc., 965 F.2d 848 (10th Cir. 1992). Throughout this history, however, the 

government’s efforts to silence these speakers largely have been thwarted by the Supreme 

Court’s clear instruction on the breadth of the First Amendment and the limits of 

government censorship over protected speech. This Court should follow the Supreme 

Court’s instruction and dismiss the indictment as an unconstitutional intrusion on 

Defendants’ First Amendment rights.

II. THE FIRST AMENDMENT PRESUMPTIVELY PROTECTS THE 

SPEECH AT ISSUE.

As detailed by Defendants, the indictment’s many allegations all rest on the same 

erroneous assumption: that advertisements that include sexually oriented depictions and 

descriptions are advertisements for illegal sexual activity. See Defs.’ Mot. to Dismiss 

Indictment at 16-17 & n.16, United States v. Lacey, No. CR-18-422-PHX-SMB (D. Ariz. 

Apr. 22, 2019), ECF No. 539 (noting the government’s characterization of Backpage.com 

adult section advertisements as “obviously for” and “indicative of” illegal prostitution 

without any showing that the advertisements actually are for illegal prostitution). By 

equating “adult” services with prostitution, the indictment presumes that advertisements 

in the adult or escort categories on Backpage.com are illegal and unprotected by the First 

Amendment simply because they look like advertisements for illegal prostitution. That 

presumption is exactly backwards. Backpage.com’s advertisements, and the website more 

generally, are plainly speech. See Backpage.com, LLC v. Dart, 807 F.3d 229, 230-31, 234 

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(7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2016) (holding that Backpage.com was “an 

avenue of expression of ideas and opinions” protected by the First Amendment, including 

its “classified ads for ‘adult’ services.”). Accordingly, the government’s prosecution of 

Defendants, based on their publication of third-party advertisements on Backpage.com, 

is presumptively unconstitutional. The First Amendment protects allspeech from contentbased government proscription—even speech that looks like it might be unprotected—

unless and until the government proves that the speech actually is unprotected, or that the 

proscription can survive strict scrutiny. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 

255 (2002) (“The Government may not suppress lawful speech as the means to suppress 

unlawful speech. Protected speech does not become unprotected merely because it 

resembles the latter. The Constitution requires the reverse.”); United States v. Playboy 

Entm’t Grp., 529 U.S. 803, 816-17 (2000) (“When the Government restricts speech, the 

Government bears the burden of proving the constitutionality of its actions.”); Simon & 

Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) 

(“The First Amendment presumptively places [content-based burdens on speech] beyond 

the power of the government.”). 

The First Amendment presumptively shields popular and unpopular speech alike 

from government censorship. “The First Amendment's guarantee of free speech does not 

extend only to categories of speech that survive an ad hoc balancing of relative social 

costs and benefits. The First Amendment itself reflects a judgment by the American 

people that the benefits of its restrictions on the Government outweigh the costs. Our 

Constitution forecloses any attempt to revise that judgment simply on the basis that some 

speech is not worth it.” United States v. Stevens, 559 U.S. 460, 470 (2010); see also, e.g.,

Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (“[T]he Government’s disapproval of a subset 

of messages it finds offensive . . . is the essence of viewpoint discrimination.”); Ashcroft, 

535 U.S. at 245 (“It is . . . well established that speech may not be prohibited because it 

concerns subjects offending our sensibilities.”); Playboy Entm’t Grp., 529 U.S. at 813 

(“Where the designed benefit of a content-based speech restriction is to shield the 

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sensibilities of listeners, the general rule is that the right of expression prevails, even 

where no less restrictive alternative exists. We are expected to protect our own 

sensibilities simply by averting our eyes.” (internal quotation marks and alterations 

omitted)); id. at 826 (“The history of the law of free expression is one of vindication in 

cases involving speech that many citizens may find shabby, offensive, or even ugly.”); 

see also Perez v. Ledesma, 401 U.S. 82, 117 n.10 (1971) (Brennan, J., concurring and 

dissenting in part) (“The deterrence emanating from the existence of a [criminal] statute 

purporting to prohibit constitutionally protected expression is itself plainly inconsistent 

with the First Amendment . . . which was intended to protect vigorous, robust, and 

unpopular speech without a threat of punishment under state law.” (internal citations 

omitted)).

The First Amendment’s presumptive protection of unpopular speech applies with 

full force to sexually oriented expression. See Sable Commc’ns of Cal., Inc. v. FCC, 492 

U.S. 115, 126 (1989) (“Sexual expression which is indecent but not obscene is protected 

by the First Amendment.”); see also Playboy Entm’t Grp., 529 U.S. at 816-17 (applying 

presumption to regulation targeting sexually oriented television channels). As the Court 

observed in construing a statute that prohibited traffic of “visual depiction[s]” of minors 

engaged in sexually explicit conduct, “[p]ersons do not harbor settled expectations that 

the contents of magazines and film are generally subject to stringent public regulation. In 

fact, First Amendment constraints presuppose the opposite view.” United States v. XCitement Video, Inc., 513 U.S. 64, 65-66, 71-72 (1994). This presumption also applies to 

the Internet, and applies to protect even sexually oriented expression that looks like it 

might be tied to illegal conduct. The “prospect of crime” arising from sexually oriented 

speech, or the “mere tendency” of such speech “to encourage unlawful acts,” cannot 

“justify laws suppressing protected speech.” Ashcroft, 535 U.S. at 245, 253. Nor can the 

government prohibit sexually oriented speech simply “because it increases the chance an 

unlawful act will be committed at some indefinite future time.” Id. at 253 (internal 

quotation marks omitted). Because sexually oriented speech is presumptively protected, 

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it can be restricted only if the government first establishes that the speech falls within the 

narrowly and carefully circumscribed categories of unprotected speech, or that the 

restriction is narrowly tailored to promote a compelling state interest. Sable, 492 U.S. at 

126; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963) (“[R]egulation by the States 

of obscenity [must] conform to procedures that will ensure against the curtailment of 

constitutionally protected expression, which is often separated from obscenity only by a 

dim and uncertain line.”). 

The government must overcome this heavy burden before it may regulate sexually 

oriented speech because there is no margin for error in such regulation, especially when, 

as here, the speakers are at peril of losing their liberty and property for exercising their 

right to publish constitutionally protected expression. See Ashcroft, 535 U.S. at 244 (“[A] 

law imposing criminal penalties on protected speech is a stark example of speech 

suppression.”). The line between sexually oriented speech that is legal and 

“unconditionally guaranteed,” and sexually oriented speech that “may legitimately be

regulated, suppressed, or punished,” must be “finely drawn” because “[e]rror in marking 

that line exacts an extraordinary cost.” Playboy Entm’t Grp., 529 U.S. at 817 (internal 

quotation marks omitted). That cost is the “abridgment of the right of the public in a free 

society to unobstructed circulation” of constitutionally protected expression. A Quantity 

of Copies of Books v. Kansas, 378 U.S. 205, 213 (1964). The Supreme Court has drawn 

such fine lines to cordon unprotected from protected sexually oriented speech because the 

unpopularity of the latter can make it especially vulnerable to unconstitutional 

government encroachment, pursued under the misguided aegis of moral authority. The 

Constitution, however, “no more enforces a relativistic philosophy or moral nihilism than 

it does any other point of view. The Constitution exists precisely so that opinions and 

judgments, including esthetic and moral judgments about art and literature, can be 

formed, tested, and expressed. What the Constitution says is that these judgments are for 

the individual to make, not for the Government to decree, even with the mandate or 

approval of a majority.” Playboy Entm’t Grp., 529 U.S. at 818. 

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III. THE FIRST AMENDMENT DEMANDS THAT THE GOVERNMENT 

PROVE DEFENDANTS’ KNOWING PUBLICATION OF SPECIFIC 

UNPROTECTED SPEECH.

As established above, “sensitive tools,” Bantam Books, 372 U.S. at 66 (quotation 

marks and alteration omitted), must be used to separate legitimate sexually oriented 

speech—which must be protected from all but the most compelling and narrowly tailored 

restrictions—from illegitimate sexually oriented speech that may be outlawed without 

threat to free expression. “[T]o avoid the hazard of self-censorship of constitutionally 

protected material” posed by criminal statutes that target unprotected speech, Mishkin v. 

State of New York, 383 U.S. 502, 511 (1966), the Supreme Court has recognized scienter 

as one such “sensitive tool.” In Smith v. California, 361 U.S. 147 (1959), the Court 

considered a local ordinance that made it unlawful “for any person to have in his 

possession any obscene or indecent writing or book” in any bookstore, but did not require 

that a bookseller have any knowledge of the obscene or indecent contents of the writing 

or book. Id. at 148-49 (quotation marks and alterations omitted). The ordinance, the Court 

observed, imposed strict liability on booksellers for having obscene books on their 

shelves; thus, a bookseller with no knowledge of a given book’s obscene or indecent 

contents could still be ensnared by the ordinance and subject to penalty. Id. at 150. 

The Court held that the Constitution could not tolerate strict liability in an 

ordinance regulating speech, because the ordinance had “the collateral effect of inhibiting 

the freedom of expression, by making the individual the more reluctant to exercise it.” 

Id. at 150-51. The Constitution’s guarantees of free speech placed the ordinance in a 

category apart from strict liability criminal statutes for food and drug regulations; unlike 

food or drug distributors, booksellers possessed a constitutional right to distribute their 

wares without regulation. Id. at 152-53. The booksellers’ exercise of that right redounded 

to the benefit of the public more broadly by affording the public access to all 

constitutionally protected materials. Id. at 153. The absence of scienter in the ordinance, 

however, incented booksellers to sell only those books they had personally inspected, 

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severely attenuating the ability of booksellers and their patrons to engage in the 

marketplace of ideas. Id. “The bookseller’s self-censorship, compelled by the State,” the 

Court wrote, “would be a censorship affecting the whole public,” reaching books both

protected and unprotected. Id. at 154. The State could not indirectly erode the public’s 

right to free expression—by coercing booksellers to act as censor boards, scrutinizing 

every book in their shops for obscenity, or risk criminal penalty—any more than it could 

directly. Id.; see also United Mine Workers of Am. v. Ill. State Bar Ass’n, 389 U.S. 217, 

222 (1967) (“The First Amendment would . . . be a hollow promise if it left government 

free to destroy or erode its guarantees by indirect restraints so long as no law is passed 

that prohibits free speech . . . .”). The ordinance, then, could only constitutionally apply 

to those booksellers who sold obscene books with full knowledge of their obscenity. The 

possibility that booksellers might “falsely disclaim knowledge” or “falsely deny reason 

to suspect” the obscenity of books in their possession as a defense did not persuade the 

Court to dispense with the requirement for scienter in the ordinance, given how grave and 

insidious a threat the ordinance without scienter posed to a freethinking society. Smith, 

361 U.S. at 154. 

Over thirty years after Smith, to guard against government infringement of 

constitutionally protected speech, the Court again affirmed that scienter is a necessary 

element in criminal statutes that prohibit sexually oriented speech. In X-Citement Video, 

the Court construed a statute that prohibited interstate transportation, shipping, receipt, 

distribution, and reproduction of visual depictions of minors engaged in sexually explicit

conduct. 513 U.S. at 65-66. The statute, as written, required that an offender knowingly 

traffic in those visual depictions. Id. at 68. But the “most natural grammatical reading” of 

the statute, and the one adopted by the Ninth Circuit, did not require that the offender 

know the age of the minors depicted, or the sexually explicit nature of the depictions. Id.

at 68-69. Despite the consistency of this construction with the statute’s plain language, 

the Court declined to affirm it “because of the respective presumptions that some form of 

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scienter is to be implied in a criminal statute even if not expressed, and that a statute is to 

be construed where fairly possible so as to avoid substantial constitutional questions.” Id.

Absent a scienter requirement for the age-of-minority and sexually-explicitconduct elements, the Court found, the statute produced “absurd” results by sweeping 

within its ambit “actors who had no idea that they were even dealing with sexually explicit 

material.” Id. at 69. Such results could not be reconciled with the Court’s practice of 

reading “broadly applicable scienter requirements” into statutes silent on scienter, the 

harsh penalties of prison time and substantial fines for violating the statute, or the First 

Amendment’s presumption that expressive material—including the visual depictions at 

issue in the statute—would not be subject to “stringent public regulation.” Id. at 70-72. A 

scienter requirement, moreover, had to apply to the age-of-minority element because the 

“age of the performers” depicted was the “crucial element separating” sexually explicit

expression protected by the First Amendment from “wrongful conduct.” Id. at 72-73. A 

statute “completely bereft of a scienter requirement” on the age of the performers would 

thus have “raise[d] serious constitutional doubts.” Id. at 78. 

Like the statute in X-Citement Video, the instant indictment—which alleges only 

Defendants’ general awareness that allegedly illegal activity was being advertised on 

Backpage.com—raises “serious constitutional doubts.” Id. But unlike the statute there, 

the indictment cannot be read to avoid such unconstitutionality.1 Under the government’s 

theory of the case set forth in the indictment, the only distinction between protected 

sexually oriented speech and the unlawful speech Defendants are alleged to have 

promoted is Defendants’ purported ambient awareness of the speech’s general 

unlawfulness. See Defs.’ Mot. to Dismiss Indictment at 31-34. And Defendants’ 

purported ambient awareness is almost entirely based on claims that other people said the 

advertisements were illegal, ranging from State Attorneys General, the Senate Permanent 

 

1 For all of the reasons explained by Defendants, the Indictment fails not only as a 

constitutional matter but also as a statutory matter, because it fails to allege the requisite 

specific intent required for a prosecution under the Travel Act or the federal money 

laundering statute. See Defs.’ Mot. to Dismiss Indictment at 26-37.

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Select Committee on Intelligence, Sheriff Dart (and others like him), and CNN. The 

government seems to believe that if everyone says you are publishing unprotected speech, 

then you must “know” it and therefore must lose your constitutional protections. But the 

scienter demanded by the Constitution for speech-related prosecutions is specific 

knowledge and intent. Id. at 13. The indictment does not allege that Defendants were

specifically aware that any of the advertisements on Backpage.com were illegal, or that 

Defendants intended to further any illegality—only that third parties posting on 

Backpage.com may have intended to promote illegal activity through their 

advertisements. Because the Constitution does not demand “omniscience” from 

Defendants of the content or intention of third-party speakers posting on Backpage.com, 

Smith, 361 U.S. at 153, the government may not impose criminal liability on Defendants 

for their general knowledge of third-party speaker misconduct. The indictment, then, 

cannot stand.

IV. THE GOVERNMENT HAS ABANDONED THE PRESUMPTION OF 

CONSTITUTIONALITY AND THE REQUISITE SCIENTER HERE TO 

SILENCE UNPOPULAR SEXUALLY ORIENTED SPEECH.

This case is simply the latest chapter in a long history of government attempts to 

suppress and censor disfavored speakers, especially those disfavored for offering sexually 

oriented expressive materials. For decades, the government has been trying to silence 

these disfavored speakers by abusing its prosecutorial powers to drive the speakers out of 

“polite” society. However, the Supreme Court has long recognized that such attempts are 

invidious to the First Amendment and has erected extensive bulwarks to protect against 

them. See, e.g., Ashcroft, 535 U.S. at 250 (finding law criminally prohibiting non-obscene 

sexually explicit images that appear to depict minors but were produced without using 

real children unconstitutional); Playboy Entm’t Grp., 529 U.S. at 812-14 (finding blanket 

law requiring cable television operators to block signals for channels dedicated to nonobscene sexually oriented programming during set time periods unconstitutional); Reno

v. ACLU, 521 U.S. 844, 870-79 (1997) (finding law criminally prohibiting transmission 

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of non-obscene “indecent” communications to persons under age 18 unconstitutional); XCitement Video, 513 U.S. at 70-73, 78 (requiring scienter in law criminally prohibiting 

traffic in sexually explicit depictions of children); Sable Communications, 492 U.S. at 

126-28 (finding statute imposing blanket ban on “indecent” but non-obscene “dial-aporn” telephone messages unconstitutional); Smith, 361 U.S. at 152-54 (requiring scienter 

in law criminally prohibiting possession of obscene books).2

Despite the Supreme Court’s clear instruction on the breadth of sexually oriented 

speech protected by the First Amendment, the government’s overzealous and overbroad 

efforts to prosecute those who offer a forum for protected sexually oriented speech 

continues. In recent years, the campaign against Backpage.com and its publishers—and 

particularly the government’s decision to indict Defendants for offering a forum for 

protected speech without even attempting to show that Defendants specifically and 

intentionally published unprotected speech—is reminiscent of the government’s “Project 

PostPorn” campaign in the 1980s targeting Amicus The DKT Liberty Project’s founder, 

among others. As detailed in United States v. PHE, the government in the 1980s 

undertook a “coordinated, nationwide prosecution strategy against companies that sold 

obscene materials” aimed at driving the adult entertainment industry to extinction by 

undermining its profitability. 965 F.2d at 850. In executing this “strategy,” prosecutors 

 

2 See also Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63, 65-66 (1989) (finding 

seizure of thousands of adult bookstores’ “presumptively protected books and films,” 

without adversarial hearing, unconstitutional); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 

636, 636-67 (1968) (finding seizure of films for alleged obscenity, without adversarial 

hearing, unconstitutional); Dombrowski v. Pfister, 380 U.S. 479, 493-94 (1975) (finding 

law permitting criminal prosecution for “subversive activities” chilling of protected 

speech and unconstitutionally overbroad); A Quantity of Copies of Books, 378 U.S. at 

207, 210-11 (finding seizure of thousands of novels for burning or other destruction due 

to alleged obscenity, without adversarial hearing, unconstitutional); Bantam Books, 372 

U.S. at 61-63, 64, 70-71 (finding obscenity commission’s practice of notifying book 

distributors of “objectionable” material within their books, alluding to prosecution in their 

notice, and circulating lists of “objectionable” publications to local police departments, 

unconstitutional); Marcus v. Search Warrant, 367 U.S. 717, 723, 731-33 (1961) (finding 

seizure of tens of thousands of copies of publications for destruction due to alleged 

obscenity, without adversarial hearing, unconstitutional). 

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attempted to extort plea agreements from defendants by threatening them with “multiple 

prosecutions” if they did not cease distribution “of all sexually oriented materials, not 

simply those that were obscene”—prosecutions that would bankrupt the defendants. Id.

at 851. The prosecutors made these threats with full knowledge that, if the defendants 

took the plea, they would be required to “stop sending material that was protected by the 

First Amendment.” Id. Defendants did not take the plea; as a consequence, they were 

subjected to costly prosecutions, “intrusive and intimidating” investigations, and 

“harass[ing]” subpoenas—all in an effort to stop defendants from distributing materials 

that the government knew were, in part, constitutionally protected. Id. at 851-52 

(quotation marks omitted). Following the Supreme Court’s instruction that “[t]he First 

Amendment bars a criminal prosecution where the proceeding is motivated by the 

improper purpose of interfering with the defendant’s constitutionally protected speech,”

a federal appellate court halted the government’s many abuses of prosecutorial power by 

ordering remand. Id. at 849, 860-61.

The campaign against Defendants for their publication of Backpage.com is quite 

similar. Backpage.com has been repeatedly subjected to prosecutorial attempts to impose 

criminal liability for what courts have repeatedly recognized is constitutionally protected 

expression. See Defs.’ Mot. to Dismiss Indictment at 4-8, 17-18. The government’s 

attempt here to prosecute Defendants for publishing Backpage.com, by pursing a theory 

of criminal liability that defies constitutional limits on its prosecutorial powers, is simply 

one more attempt to erode the First Amendment’s carefully erected bulwarks around free 

expression. See Bantam Books, 372 U.S. at 66-67. This Court should not countenance this 

attempt. 

V. CONCLUSION

For the forgoing reasons, Amici respectfully request that this Court grant 

Defendants’ Motion to Dismiss the Indictment.

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DATED this 28th day of May, 2019.

JENNER & BLOCK LLP

By:/s/ Jessica Ring Amunson

Jessica Ring Amunson (pro hac vice)

 Counsel of Record

Tassity Johnson (pro hac vice forthcoming)

1099 New York Ave., NW, Suite 900

Washington, DC 20001

Attorneys for The DKT Liberty Project, Cato 

Institute, and Reason Foundation

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CERTIFICATE OF SERVICE

I hereby certify that on May 28, 2019, 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 all CM/ECF registrants.

s/ Jessica Ring Amunson

Case 2:18-cr-00422-DJH Document 619-1 Filed 05/28/19 Page 14 of 14