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`Thomas H. Bienert, Jr. (CA Bar No.135311, admitted pro hac vice)
`Whitney Z. Bernstein (CA Bar No. 304917, admitted pro hac vice)
`BIENERT KATZMAN LITTRELL WILLIAMS LLP
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Facsimile: (949) 369-3701
`tbienert@bklwlaw.com
`wbernstein@bklwlaw.com
`Attorneys for James Larkin
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`Paul J. Cambria, Jr. (NY Bar No. 1430909, admitted pro hac vice)
`Erin McCampbell (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
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`Additional counsel listed on next page
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Plaintiff,
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`United States of America,
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`vs.
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`Michael Lacey, et al.,
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`Defendants.
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`Case No. 2:18-cr-00422-PHX-DJH
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`DEFENDANTS’ REPLY IN SUPPORT
`OF MOTION TO DISMISS WITH
`PREJUDICE
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`Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 2 of 29
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`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
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`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
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`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
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`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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`Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 3 of 29
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`TABLE OF CONTENTS
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`INTRODUCTION. .......................................................................................................... 1
`A.
`Factual Background............................................................................................... 2
`B.
`Legal Background .................................................................................................. 6
`THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE
`UNDER THE DOUBLE JEOPARDY CLAUSE. ..................................................... 9
`Judge Brnovich declared a mistrial because of the government’s purposeful
`A.
`conduct and did not make any findings under Kennedy. ..................................... 10
`The government’s other arguments are similarly unavailing. ........................ 11
`B.
`Defendants have asserted a more than colorable double jeopardy claim. ... 13
`C.
`THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE
`UNDER ITS SUPERVISORY AUTHORITY. ......................................................... 14
`The government admits to withholding obvious Rule 16 and Brady material.
`A.
`................................................................................................................................ 16
`The government’s justification of its invasions of Defendants’ privileges
`with Ferrer is manifestly hypocritical. ............................................................... 17
`The government’s invasions of Defendants’ privileges with respect to nearly
`1,000 emails shows a broad pattern of misconduct. ....................................... 19
`THE COURT SHOULD DISMISS THE INDICTMENT WITH PREJUDICE
`UNDER THE DUE PROCESS CLAUSE. ................................................................ 22
`CONCLUSION. .............................................................................................................. 22
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`C.
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`B.
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`II.
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`III.
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`Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 4 of 29
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`TABLE OF AUTHORITIES
`Cases Page(s)
`Arizona v. Washington,
`434 U.S. 497 (1978) .............................................................................................................................. 12
`Bartnicki v. Vopper,
`532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) ..................................................................... 8
`Bursey v. United States,
`466 F.2d 1059 (9th Cir. 1972) ............................................................................................................... 9
`Carriger v. Stewart,
`132 F.3d 463 (9th Cir. 1997) ............................................................................................................... 16
`Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay,
`868 F.3d 104 (2d Cir. 2017) .................................................................................................................. 8
`Chaplinsky v. New Hampshire,
`315 U.S. 568 (1942) ................................................................................................................................ 9
`Greater Philadelphia Chamber of Com. v. City of Philadelphia,
`949 F.3d 116 (3d Cir. 2020) .................................................................................................................. 8
`IMDB.com Inc. v. Bacerra,
`962 F.3d 1111 (9th Cir. 2020) ............................................................................................................... 8
`McKenna,
`881 F. Supp. 2d ............................................................................................................................... 2, 3, 9
`Metro Lights, L.L.C. v. City of Los Angeles,
`551 F.3d 898 (9th Cir. 2009) ................................................................................................................. 7
`Oregon v. Kennedy,
`456 U.S. 667 (1982) .......................................................................................................................... 9, 12
`Pittsburgh Press Co. v. Human Relations Comm’n,
`413 U.S. 376 (1973) ............................................................................................................................ 6, 7
`Richardson v. United States,
`468 U.S. 317 (1984) .............................................................................................................................. 13
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`United States v. Alvarez-Moreno,
`657 F.3d 896 (9th Cir. 2011) ............................................................................................................... 13
`United States v. Bhatia,
`No. CR 05-0334 SBA, 2007 WL 2795066 (N.D. Cal. Sept. 26, 2007) .......................................... 13
`United States v. Bundy,
`968 F.3d 1019 (9th Cir. 2020) ............................................................................................................. 17
`United States v. Kojayan,
`8 F.3d 1315 (9th Cir. 1993) .................................................................................................... 14, 15, 22
`United States v. Lopez-Avila,
`678 F.3d 955 (9th Cir. 2012) ......................................................................................................... 14, 15
`United States v. Lum,
` 944 F.2d 642 (9th Cir. 1991)............................................................................................................... 11
`United States v. Martin,
`561 F.2d 135 (8th Cir. 1977) ................................................................................................................. 9
`United States v Pederson,
`2014 WL 3871197 (D. Or. Aug. 6, 2014) .......................................................................................... 21
`Valle Del Sol Inc. v. Whiting,
`709 F.3d 808 (9th Cir. 2013) ............................................................................................................. 7, 8
`Statutes
`A.R.S. § 9-500.10 ........................................................................................................................................ 2
`A.R.S. § 13-1422 ......................................................................................................................................... 2
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`Case 2:18-cr-00422-DJH Document 1410 Filed 11/30/21 Page 6 of 29
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`I.
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`INTRODUCTION.
`In the face of damning admissions from one of its key witnesses, a California DOJ agent,
`that the hundreds of Backpage.com ads he reviewed in effect were protected speech under the
`First Amendment, the government had no option but to goad Defendants into moving for a
`mistrial. Agent Fichtner was supposed to testify that the ads he reviewed “were nothing less than
`prostitution ads.” Exh. E at 7-11.1 Instead, he testified that the ads were lawful on their face, he
`could not tell whether they advertised prostitution, and he made no arrests based on the ads (and
`is not aware of any law enforcement officer making arrests based on the ads). See, e.g., Exhs. J, K.
`With the core of the government’s case eviscerated by the conclusion of its first witness’ testimony,
`the government doubled down and goaded a mistrial through repeated inflammatory testimony
`about rape and child sex trafficking that violated multiple Court orders. If there ever was a case
`of “goading” under Oregon v. Kennedy, this is it.
`Alternatively, the Court should dismiss the indictment under its supervisory powers. The
`government admits it has not turned over a highly relevant and exculpatory attorney opinion letter
`provided by Arnold & Porter to a prospective third-party purchaser of Backpage regarding the
`legality of the business. Dkt. 1395 (“Opp.”) at 26-27. That is the tip of the iceberg here, as the
`government continues to deny the obvious relevance of a prior federal investigation that resulted
`in a decision not to prosecute Backpage just six years before this prosecution was brought, without
`ever certifying that it has produced all of the factual materials underlying that investigation.
`The government also continues to sweep under the rug its admitted, serial privilege
`invasions during its interviews of the government’s key cooperating witness, Carl Ferrer. The
`government cannot escape its tacit admission on the eve of trial (in seeking to preclude Defendants
`from putting on the very attorney advice that the government previously claimed was non-
`privileged) that the questions it asked Ferrer directly called for information that, on its face, is
`privileged. This Court’s supervisory powers exist precisely to address this type of pattern of
`government misconduct and to deter the government from engaging in such conduct again in the
`future.
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`“Exh.” Refers to the exhibits attached to Defendants’ Motion to Dismiss at Dkt. 1355.
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`Because this motion was filed prior to Judge Brnovich’s recusal and the Court does not
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`have the benefit of being familiar with the nearly four years of history preceding Defendants’
`motion dismiss, Defendants initially will provide some context regarding the government’s charges
`so the Court can better understand how the government’s case foundered, why the government
`would want to cause a mistrial, and how the government’s trial misconduct is part of a long pattern
`of misconduct.
`A.
`Factual Background
`On March 28, 2018, Defendants were indicted on Travel Act charges tied to fifty specific
`adult-oriented ads that had run on Backpage.com, related money laundering counts, and related
`conspiracy charges. Each of the fifty charged ads was either a dating ad, an ad for massage services,
`or an ad for escort services—with dating, massage services, and escort services all being lawful
`activities.2
`Backpage.com was the second largest classified advertising website on the internet. See
`Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1266 (W.D. Wash. 2012). During the fourteen
`years it operated, the site hosted hundreds of millions of ads posted by third parties, including
`many millions of adult-oriented ads. Id. Similar to craigslist.com (the largest classified ad website
`on the Internet), most ads on Backpage were free. Id. Also like craigslist, Backpage generally
`required the payment of a small fee (between $7.00 and $12.00) for adult-oriented ads. Some of
`the fifty charged ads were paid ads, but others were free ads that generated no revenue for
`Backpage. Backpage’s aggregate revenues from the publication of the fifty charged ads probably
`were at most between $500.00 and $1,000.00.
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`2
`The government erroneously told Judge Brnovich that escort services were unlawful
`virtually everywhere in the United States (Dkt. 1171-1 at 15 (“I think escort is sort of a
`misnomer…. because it suggests that escort services is somewhat legal. And, as we know, it’s only
`legal in a very a small county in Nevada, so it’s really prostitution services…”)), but that is not
`true. E.g., McKenna, 881 F. Supp. 2d at 1282 (“numerous states license, tax and otherwise regulate
`escort services as legitimate businesses”); A.R.S. § 9-500.10 (regulating escort advertising); A.R.S.
`§ 13-1422 (regulating adult oriented businesses, including escorts). Judge Brnovich, too,
`understood escort services to be lawful. Dkt. 1171-1 at 15-16 (“I did think there was a distinction
`between escort services and prostitution services, so I guess that’s the main thing, or one of the
`issues involved in the case…”).
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`From the many millions of adult-oriented classified ads that ran on Backpage in its fourteen
`years of operation, the government identified and charged just one ad that expressly offered sex
`in exchange for money. Dkt. 230, ¶ 201, Count 23. That solitary ad was a free ad, which generated
`absolutely no revenue for Backpage. None of the forty-nine other charged ads expressly offered
`sex in exchange for money, nor did any other Backpage ad the government identified in its
`disclosures to the defense. That is because, as the government knows, Backpage never allowed
`ads offering sex in exchange for money on its website.
`Undeterred by the fact that Backpage never permitted ads proposing facially unlawful
`transactions, the government premised its prosecution on its claim that many Backpage ads
`contained terms or images that were “indicative” of prostitution, which it claimed made them
`“obvious” prostitution ads. E.g., Superseding Indictment ¶ 160 (“Victim 1’s Backpage ads often
`included words and phrases that were indicative of prostitution”).3 The government took the same
`tack in its unprecedented seizures of virtually all of Defendants’ assets (see Dkt. 1366), where its
`affiant, Postal Inspector Lyndon A. Versoza, acknowledged the “seemingly innocuous language”
`in Backpage ads, but claimed the “otherwise neutral or innocuous terms” in Backpage ads actually
`were a “coded language for sex trafficking and prostitution.”4 Inspector Versoza also claimed,
`based on his “training and experience,” that images in Backpage ads such as “a picture of a
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`See also ¶¶ 34 (“ads … [had] terms and pictures that were particularly indicative of
`3
`prostitution”); 68 (“particular terms that were indicative of prostitution”); 75 (“terms indicative of
`prostitution”); 78 (“50 terms [] all of which were indicative of prostitution”); 87 (“lengthy list of
`terms that were indicative of prostitution”); 91 (“ad [] was obviously for prostitution”); 95 (“660
`words or phrases that are indicative of prostitution”); 96 (“The ad was obviously for prostitution”);
`107 (“phrases … indicative of prostitution”); 128 (“words and phrases that are indicative of
`prostitution”); 132 (“a woman who was obviously posting prostitution ads”) (first bullet point);
`143 (“long list of terms that are indicative of prostitution”); 161 (Victim 2’s ads “also contained
`words and phrases indicative of prostitution”); 164 (“Victim 5’s Backpage ads included words and
`phrases that were indicative of prostitution”); 167 (“Victim 8’s … ads on Backpage [] included
`words and phrases that were indicative of prostitution”); 170 (Victim 11’s “Backpage ads contained
`words and phrases indicative of prostitution”).
`4
`Even if Postal Inspector Versoza expressed his opinions about coded language in good
`faith, he could not know whether his speculations were correct. McKenna, 881 F. Supp. 2d at 1279
`(“[W]here 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…. [I]f the offer is implicit, how can a third party ascertain that which is
`being offered before the transaction is consummated?”).
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`woman’s cleavage,” women “wearing lingerie” and “posing in sexual positions,” and images of
`“naked buttocks” also were “typical of ads for prostitution.”5 Dkt. 1366-16, ¶¶ 31-32.
`At trial, the government planned to follow a similar tack: a) calling dozens of witnesses to
`express the view that anyone could tell that most or all adult ads on Backpage were posted by
`parties engaged in prostitution; b) calling dozens more witnesses to present heart-wrenching
`testimony about various tragedies that befell young women who, voluntarily or involuntarily, were
`involved in prostitution and at one point or another had an ad on Backpage, including showing
`images of individuals untethered to the indictment’s fifty ads; and c) presenting evidence that
`Defendants knew, from Backpage’s assistance to law enforcement and from politicians, law
`enforcement officers, and religious leaders calling on Backpage to censor adult advertising because
`of the criminal activities of some advertisers on the site, that Backpage knowingly “facilitated
`prostitution” by publishing dating, massage, and escort ads.6 See, e.g., Dkt. 954 (government
`arguing that a letter from Auburn Seminary’s president is “relevant and highly probative of
`Defendants’ knowledge about whether the vast majority of Backpage’s ads were for prostitution”);
`Exh. E at 28 (“[T]he news media outlet CNN was getting ready to run a broadcast about children
`being sold for sex on Backpage.com.”); id. at 62 (noting that the photos of mothers and their
`children shown during the government’s opening are not associated with any of the fifty ads in the
`indictment). Indeed, in its opening statement, the government sought to use Backpage’s right to
`hire attorneys to investigate and respond to these claims to impermissibly prejudice the jury against
`Defendants. See id. at 23 (referring to Samuel Fifer, a partner and media law expert at Dentons
`who dealt with the National Association of Attorneys General on behalf of Backpage, as a “public
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`5
`The government’s claimed ability to identify women as prostitutes based on cleavage,
`lingerie, provocative poses, and naked buttocks is extraordinary, given how commonplace those
`are today, both on the Internet and in society in general.
`6
`The government repeatedly suggests that a Travel Act violation can be predicated on
`Defendants’ “facilitating prostitution.” This is wrong. The Travel Act requires, and Judge Brnovich
`has already ruled, that a Travel Act violation requires specific intent to facilitate a business
`enterprise involved in prostitution offenses and cannot be predicated on facilitating prostitution
`in the abstract. See Dkt. 946 (“[Defendants] were not indicted for facilitating the amorphous notion
`of ‘prostitution.’ They were indicted for facilitating (via publishing ads) on fifty distinct occasions
`where prostitutes, prostitution-related businesses, or other groups were involved in the business
`of prostitution.”); Ex. S (12/04/20 Hr. Tr.) at 38 (“[T]his case is not about Backpage. Backpage
`was prosecuted in a separate case . . . . This case is about these individual defendants and whether
`they had specific knowledge of these ads as facilitating illegal activity.”).
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`relations representative”); id. at 32 (impugning Defendants for sending a “cease and desist letter”
`to CNN, again, disparagingly referring to Backpage’s attorney as a “PR representative”).
`Commencing with its opening statement and continuing through its first several witnesses
`at trial, the government clearly headed its prosecution down that road. And from the outset, that
`road proved rather rocky. First, the government nearly caused a mistrial during its opening
`statement, which was a parade of horribles about human trafficking destroying the lives of women
`and children, contrasted with the significant profits Backpage generated, and with virtually no
`mention of the charged counts nor any linkage of any Defendant to any charged count. Then
`Judge Brnovich seriously limited the testimony the government was permitted to elicit from those
`advertised on Backpage and their relatives—so the government could elicit the heart-wrenching
`testimony it needed to inflame the jury only by repeatedly flouting the Court’s rulings. Then the
`government’s lead witness, Special Agent Supervisor Fichtner, completely undermined the
`government’s core theory of the case. Indeed, during its opening, the government promised the
`jury that Agent Fichtner would identify the ads he reviewed as express prostitution ads. Exh. E at
`7-11 (arguing that the “evidence will show” the Fichtner-reviewed ads “were nothing less than
`prostitution ads.”). But that accusation also fell apart. After Fichtner showed the jury hundreds
`of Backpage ads, with Fichtner and the government suggesting to the jury that all those ads were
`obvious prostitution ads, Fichtner was forced on cross-examination to admit that:
`a) many adult activities involving sexual activities and money are legal;
`b) the ads he reviewed were all facially lawful;
`c) he could not determine whether any of the hundreds of ads he showed the jury related
`to lawful activity or unlawful activity; and
`d) he had never arrested a person for a prostitution offense based only on the content of
`a Backpage adult ad and he knew of no law enforcement officer who had done so.
`See, e.g., Exhs. J, K. Put differently, Fichtner testified that experienced law enforcement officers
`could not look at the content of Backpage adult ads and know whether the posters of those ads
`were engaged in lawful or unlawful activities, while the government’s theory was grounded on
`convincing the jury anyone could tell that most or all Backpage adult ads were obvious ads for
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`prostitution, so by publishing those ads Defendants had to have intended to facilitate prostitution.
`Fichtner’s admissions on cross-examination were devastating to the government’s case and
`would become even more so if Judge Brnovich ultimately instructed the jury that Backpage adult
`ads were presumptively protected by the First Amendment, as Defendants expected her to do, for
`the reasons discussed below.7
`B.
`Legal Background
`From the outset, this prosecution has been premised on the government’s contention that
`the First Amendment did not protect Backpage’s publication of dating ads, massage ads, and
`escorts ads, because those ads were associated with prostitution, even if the ads did not expressly
`propose acts of prostitution. For example, in briefing addressing jury instructions shortly before
`the trial commenced, the government argued: “Simply put, prostitution advertising and soliciting
`are forms of commercial speech that are not constitutionally protected. Pittsburgh Press Co. v. Human
`Relations Comm’n, 413 U.S. 376, 388 (1973).” Dkt. 1216-3 at 161.
`The defense reply, filed two weeks before the trial commenced, unveiled two fundamental
`flaws in the government’s position. Dkt. 1222-2 at 2-11. First, the government was conflating
`facially unlawful speech (which generally is not protected by the First Amendment) with facially
`lawful speech (which is presumptively protected by the First Amendment). Second, numerous
`courts, including the Ninth Circuit, have held that the publication of facially lawful speech, even if
`associated with unlawful activity, is presumptively protected by the First Amendment.
`In reaching its erroneous position, the government misinterpreted Pittsburgh Press, a decision
`involving facially unlawful speech in the employment context. There, the City of Pittsburgh
`prohibited the publication of “help wanted” classified ads in sex-designated columns and the
`Pittsburgh Press newspaper violated the ordinance by publishing discriminatory “help wanted” ads
`in categories such as “‘Jobs—Male Interest,’ ‘Jobs—Female Interest,’ and ‘Male-Female.’”
`Pittsburgh Press, 413 U.S. at 377-79. The Supreme Court held that “[a]ny First Amendment interest
`which might be served by advertising an ordinary commercial proposal ... is altogether absent when
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`7
`The government and Defendants had briefed the issue of jury instructions, but Judge
`Brnovich had not yet ruled on the jury instructions by the time she declared a mistrial. See Dkts.
`1199, 1216, 1222, 1236, 1242.
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`DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
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`the commercial activity itself is illegal and the restriction on advertising is incidental to a valid
`limitation on economic activity.” Id. at 388-89.
`The Supreme Court’s holding in Pittsburgh Press went no farther than saying the First
`Amendment does not protect the publication of classified ads that are, on their face, per se
`unlawful—whether an ad expressing a per se unlawful sex preference in employment, an ad
`proposing a per se unlawful “sale of narcotics,” or an ad “soliciting prostitutes” (which would be per
`se unlawful in most of the United States).8 Notably, the Supreme Court did not hold, nor even
`suggest, that a newspaper could be forbidden from publishing facially lawful “help wanted” ads,
`even if the employers posting those ads refused to hire women who responded to the ads. Yet that
`is exactly how the government characterizes Pittsburgh Press when arguing that the First Amendment
`affords no protection to facially lawful adult ads that might be associated with prostitution.
`That government’s flawed characterization of Pittsburgh Press has been roundly and
`repeatedly rejected by the courts—including by the Ninth Circuit.9 In Metro Lights, L.L.C. v. City
`of Los Angeles, 551 F.3d 898, 904 n7 (9th Cir. 2009), the Ninth Circuit narrowly construed the
`language, “related to unlawful activity,” from Central Hudson as meaning “whether the goods or
`services the party advertises are illegal”—not whether an ad for a lawful service was placed by
`someone who might be engaged in unlawful activity:
`Central Hudson asks if the commercial speech is ‘related to unlawful activity.’ Thus,
`in the context of advertising, one must ask whether the goods or services the
`party advertises are illegal.
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`Id. (emphasis added; internal citations omitted). Four years later, in Valle Del Sol Inc. v. Whiting, 709
`F.3d 808, 822 (9th Cir. 2013), the Ninth Circuit construed the holdings of Pittsburgh Press and Central
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`8
`The Supreme Court’s exact words were: “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.... We hold only that the Commission’s
`modified order, narrowly drawn to prohibit placement
`in sex-designated columns of
`advertisements for nonexempt job opportunities, does not infringe the First Amendment rights of
`Pittsburgh Press.” Pittsburgh Press, 413 U.S. at 388, 391.
`9
`The government is wrong to claim that “Defendants cite no contrary Ninth Circuit
`authority” to Pittsburgh Press. Defendants cited each of the Ninth Circuit cases discussed below, as
`well as out-of circuit authority, in its briefing on the jury instructions (Dkt. 1222-2 at 2-11), and
`the Ninth Circuit’s Valle de Sol case in its motion.
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`DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
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`Hudson in exactly the same manner:
`Central Hudson’s legality requirement [] 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.
`Valle Del Sol, 709 F.3d at 822 (emphasis added). Just last year, the Ninth Circuit again held the same:
`Pittsburgh Press implicates only those instances when the state restricts speech that
`itself proposes an illegal transaction…. 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, 529–30, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) …
`Rather than restrict truthful speech, the typical ‘method of deterring unlawful
`conduct is to impose an appropriate punishment on the person who engages in it.’
`Bartnicki, 532 U.S. at 529, 121 S.Ct. 1753.
`IMDB.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020) (emphasis added). Accord, e.g., Centro
`de la Comunidad Hispana de