Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 1 of 64
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`No. CR-18-00422-001-PHX-DJH
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`NOTICE OF FILING OF DRAFT
`JOINT STATEMENT OF THE CASE
`AND DRAFT JURY INSTRUCTIONS
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`This Notice of Filing contains “The Court’s Proposed Statement of the Case” and
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`the “Jury Instructions Draft” as they were discussed on the record at the Final Pretrial
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`Conference held on July 27, 2023 (Doc. 1650).
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`Dated this 2nd day of August, 2023.
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`Honorable Diane J. Humetewa
`United States District Judge
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 2 of 64
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`The Court’s Proposed Statement of the Case:
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`Six individual Defendants—Michael Lacey, James Larkin, Scott Spear, John “Jed”
`Brunst, Andrew Padilla, and Joye Vaught—have been charged in a superseding
`indictment with conspiracy to commit violations of the Travel Act; and with violations of
`the Travel Act by using the mail and any facility in interstate commerce with the intent to
`facilitate the promotion, management, establishment or carryon on of a business
`enterprise involving prostitution offenses in violation of the state laws, including
`Arizona, and the laws of the United States.
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`Four of these Defendants—Michael Lacey, James Larkin, Scott spear, John Brunst—
`have been charged with conspiracy to commit money laundering; concealment money
`laundering; international promotional money laundering; and transactional money
`laundering.
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`Defendant Michael Lacey has been charged with international concealment money
`laundering.
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`These charges arise from the Defendants’ various roles in the creation, operation, and
`management of the website Backpage.com. All Defendants have pleaded not guilty to
`the charges against him and are presumed innocent. The United States has the burden of
`proving each individual guilty beyond a reasonable doubt.
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`- 2 -
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 3 of 64
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`CR-18-00422-PHX-DJH
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`JURY INSTRUCTIONS DRAFT
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`vs.
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`Plaintiff,
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`United States of America,
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`Michael Lacey, et al.,
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`Defendants.
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`I.
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`MODEL INSTRUCTIONS
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`16
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` 1.
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`Preliminary Instructions
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`ST
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`PL
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`1.1 Duty of Jury
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`1.2
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`The Charge – Presumption of Innocence*
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`DF
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`1.2
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`The Charge – Presumption of Innocence*
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`ST
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`ST
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`ST
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`ST
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`ST
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`ST
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`ST
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`ST
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`ST
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`1.3 What Is Evidence
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`1.4 What Is Not Evidence
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`1.5 Direct and Circumstantial Evidence
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`1.6 Ruling on Objections
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`1.7 Credibility of Witnesses
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`1.8 Conduct of the Jury
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`1.9 No Transcript Available to Jury
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`1.10 Taking Notes
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`1.11 Outline of Trial
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 4 of 64
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`PL
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`1.13 Separate Consideration for Each Defendant
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`DF
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`1.13 Separate Consideration for Each Defendant*
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`ST
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`1.16 Bench Conferences and Recesses
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`4
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` 2.
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`Instructions In The Course Of Trial
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`5
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`ST
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`ST
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`ST
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`ST
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`2.1 Cautionary Instruction – First Recess
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`2.2
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`Stipulated Testimony [if necessary]
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`2.3
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`Stipulations of Fact [if necessary]
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`2.12 Evidence for Limited Purpose [if necessary]
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`3.
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`Consideration of Particular Evidence
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`ST
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`3.9
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`Testimony of Witnesses Involving Special Circumstances—Immunity,
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`Benefits, Accomplice, Plea
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`3.14 Opinion Evidence, Expert Witness
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`3.15 Dual Role Testimony
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`3.16 Charts and Summaries Not Admitted into Evidence [if necessary]
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`3.17 Charts and Summaries Admitted into Evidence
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`ST
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`ST
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`ST
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`ST
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`16
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` 4. Responsibility
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`PL 4.8 Knowingly
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`PL
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`4.9 Deliberate Ignorance*
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`DF
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`4.11 Advice of Counsel*
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` 5.
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`Specific Defenses
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`6.
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`DF 5.12 Mere Presence*
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`Jury Deliberations
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`ST
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`PL
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`6.1 Duties of Jury to Find Facts and Follow Law
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`6.2 Charge Against Defendant Not Evidence—Presumption of
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`Innocence—Burden of Proof
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`DF
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`6.2 Charge Against Defendant Not Evidence—Presumption of
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`Innocence—Burden of Proof*
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`ST
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`6.3 Defendant’s Decision Not to Testify [if necessary]
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 5 of 64
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`ST
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`PL
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`6.4 Defendant’s Decision to Testify [if necessary]
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`6.5 Reasonable Doubt—Defined
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`DF
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`6.5 Reasonable Doubt—Defined*
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`ST
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`ST
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`ST
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`ST
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`ST
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`PL
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`6.6 What Is Evidence
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`6.7 What Is Not Evidence
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`6.8 Direct and Circumstantial Evidence
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`6.9 Credibility of Witnesses
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`6.10 Activities Not Charged
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`6.13 Separate Consideration of Multiple Counts—Multiple Defendants
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`DF
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`6.13 Separate Consideration of Multiple Counts—Multiple Defendants*
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`ST
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`ST
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`ST
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`ST
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`ST
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`ST
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`ST
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`6.18 On or About—Defined
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`6.19 Duty to Deliberate
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`6.20 Consideration of Evidence—Conduct of the Jury
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`6.21 Use of Notes
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`6.22 Jury Consideration of Punishment
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`6.23 Verdict Form
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`6.24 Communication with Court
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`11. Conspiracy
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`PL
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`11.1 Conspiracy—Elements (Count 1)*
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`DF
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`11.1 Conspiracy—Elements (Count 1)*
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`DF
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`11.3 Multiple Conspiracies (Count 1)*
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`DF
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`11.3 Multiple Conspiracies (Count 52)*
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`PL
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`11.4 Conspiracy—Knowledge of and Association with Other Conspirators
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`DF
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`11.4 Conspiracy—Knowledge
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`of
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`and Association with Other
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`Conspirators*
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`PL
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`11.6 Conspiracy—Liability for Travel Act Violations Committed by Co-
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`Conspirator (Pinkerton Charge)*
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`DF
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`11.6 Conspiracy—Liability for Travel Act Violations Committed by Co-
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 6 of 64
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`Conspirator (Pinkerton Charge)*
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`PL
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`11.6 Conspiracy—Liability
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`for Concealment Money Laundering
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`Committed by Co-Conspirator (Pinkerton Charge)*
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`DF
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`11.6 Conspiracy—Liability
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`for Concealment Money Laundering
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`Committed by Co-Conspirator (Pinkerton Charge)*
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`PL
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`11.6 Conspiracy—Liability
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`for
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`International Promotional Money
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`Laundering Committed by Co-Conspirator (Pinkerton Charge)*
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`DF
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`11.6 Conspiracy—Liability
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`for
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`International Promotional Money
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`Laundering Committed by Co-Conspirator (Pinkerton Charge)*
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`18. Money Laundering and Racketeering Offenses
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`PL
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`18.1 Travel Act—Interstate or Foreign Travel in Aid of Racketeering
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`Enterprises*
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`DF
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`18.1 Travel Act—Interstate or Foreign Travel in Aid of Racketeering
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`Enterprises*
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`PL
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`18.4 Laundering Monetary Instruments*
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`DF
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`18.4 Laundering Monetary Instruments*
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`PL
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`18.5 Transporting or Attempting to Transport Funds to Promote Unlawful
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`Activity*
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`DF
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`18.5 Transporting or Attempting to Transport Funds to Promote Unlawful
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`Activity*
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`PL
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`18.6 Transporting or Attempting to Transport Monetary Instruments for
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`the Purpose of Laundering*
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`DF
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`18.6 Transporting or Attempting to Transport Monetary Instruments for
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`the Purpose of Laundering*
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`PL
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`18.7 Money Laundering*
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`DF
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`18.7 Money Laundering*
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`PL
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`18.7A Money Laundering Conspiracy*
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`- 6 -
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 7 of 64
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`DF
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`18.7A Money Laundering Conspiracy*
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`II.
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`NON-MODEL STIPULATED INSTRUCTIONS
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`III. NON-MODEL INSTRUCTIONS REQUESTED BY THE UNITED STATES
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`PL
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`1.
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`State Law Need Not Be Violated for Defendants to Be Found Guilty
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`Under the Travel Act
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`PL
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`PL
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`PL
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`PL
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`PL
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`2.
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`3.
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`4.
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`5.
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`6.
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`“Business Enterprise” Defined
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`“Uses Any Facility in Interstate Commerce” Defined
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`“Facilitate” Defined
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`Specific Intent Defined
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`Proof of Knowledge or Intent
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`IV. NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANTS WITH
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`THE UNITED STATES’ OBJECTIONS
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`DF
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`DF
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`1.
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`2.
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`Specific Intent
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`Defendant’s Good Faith
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`Defense Theory of the Case
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`DF
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`DF
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`DF
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`DF
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`DF
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`DF
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`9.
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`Conspiracy – Willfulness Defined
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`Business Enterprise Explained
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`Business Enterprise Defined
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`First Amendment Protection—Speech Presumed Protected
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`First Amendment Protection—Speech Presumed Protected
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`First Amendment Protection—Offensive and Sexual Speech
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`DF
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`10.
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`First Amendment Protection—Protected Free Speech
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`DF
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`11.
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`First Amendment Protection—Ads Presumed Protected
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`DF
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`12.
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`First Amendment Protection—Coded Advertisement Language
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`DF
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`13.
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`First Amendment Protection—Examples of Legal “Adult” Services
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`DF
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`14.
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`First Amendment Protection—Ads Presumed Protected
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`DF
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`15.
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`First Amendment Protection—Government’s Burden to Overcome
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`Presumption
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 8 of 64
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`DF
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`16.
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`First Amendment Protection—Ads Presumed Protected
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`DF
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`17.
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`First Amendment Protection—No Requirement to Investigate
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`DF
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`18.
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`First Amendment Protection—No Requirement to Shut Down
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`DF
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`19.
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`First Amendment Protection—Website has the Right to Exercise
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`Editorial Control and Judgment
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`DF
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`20.
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`First Amendment Protection—Government’s Burden of Proof
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 9 of 64
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`1.2 THE CHARGE—PRESUMPTION OF INNOCENCE
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`This is a criminal case brought by the United States government. The United States
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`charges defendants with conspiracy, violations of the Travel Act, and money laundering.
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`The charges against defendants are contained in the indictment. The indictment1 simply
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`describes the charges the United States brings against each defendant. The indictment is
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`not evidence and does not prove anything.
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`Each defendant has pleaded not guilty to the charges and is presumed innocent
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`unless and until the United States proves that defendant guilty beyond a reasonable doubt.
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`In addition, each defendant has the right to remain silent and never has to prove innocence
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`or present any evidence.
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`In order to help you follow the evidence, I will now give you a brief summary of
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`the elements of the crimes that the United States must prove to make its case against each
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`charged defendant:
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`Count 1: Conspiracy
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`Defendants are charged in Count 1 of the indictment with conspiring to facilitate
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`prostitution in violation of the Travel Act under Section 1952(a)(3(A) of Title 18 of the
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`United States Code. For each defendant to be found guilty of that charge, the United States
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`must prove each of the following elements beyond a reasonable doubt:
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`First, beginning on or about 2004 and ending on or about April 2018, there was an
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`agreement between two or more persons to commit at least one Travel Act offense as
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`charged in the indictment;
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`Second, the defendant became a member of the conspiracy knowing of at least one
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`of its objects and intending to help accomplish it; and
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`Third, one of the members of the conspiracy performed at least one overt act on or
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`after March 28, 2013, for the purpose of carrying out the conspiracy.
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`1 All references to “indictment” in these instructions refer to the United States’
`superseding indictment (Doc. 230).
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 10 of 64
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`Counts 2–51: Travel Act Violations
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`Defendants are charged in Counts 2–51 of the indictment with violating Section
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`1952(a)(3) of Title 18 of the United States Code. For each defendant to be found guilty of
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`that charge, the United States must prove each of the following elements beyond a
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`reasonable doubt:
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`First, the defendant used mail or any facility in interstate or foreign commerce with
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`the intent to promote, manage, establish, carry on, or facilitate the promotion, management,
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`establishment, or carrying on of a business enterprise involving prostitution offenses in
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`violation of state or federal law;
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`Second, after doing so the defendant performed or attempted to perform an act that
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`did promote, manage, establish, carry on, or facilitate the promotion, management,
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`establishment, or carrying on of a business enterprise involving prostitution offenses; and
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`Third, the defendant did something that was a substantial step toward committing
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`the crime and that strongly corroborated the defendant’s intent to commit the crime.
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`Further, you may find a given defendant guilty of the Travel Act offense as charged
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`in Counts 2–51 of the indictment if the United States has proved each of the following
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`elements beyond a reasonable doubt:
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`First, the defendant committed the Travel Act offense as charged in Counts 2-51 of
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`the indictment;
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`Second, the defendant who committed the charged Travel Act offense was a
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`member of the conspiracy as charged in Count 1 of the indictment;
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`Third, the defendant who committed the charged Travel Act offense did so in
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`furtherance of the charged conspiracy;
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`Fourth, the defendant was a member of the same conspiracy at the time the Travel
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`Act offense charged in Counts 2-51 was committed; and
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`Fifth, the charged Travel Act offense fell within the scope of the unlawful agreement
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`and could reasonably have been foreseen to be a necessary or natural consequence of the
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`unlawful agreement.
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 11 of 64
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`Count 52: Conspiracy to Commit Money Laundering
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`Defendants are charged in Count 52 of the indictment with money laundering
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`conspiracy in violation of Section 1956(h) of Title 18 of the United States Code. For each
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`defendant to be found guilty of that charge, the United States must prove each of the
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`following elements beyond a reasonable doubt:
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`First, there was an agreement to commit money laundering;
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`Second, the defendant knew the objective of the agreement;
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`Third, the defendant joined the agreement with the intent to further its unlawful
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`purpose.
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`Count 53–62: Concealment Money Laundering
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`Defendants are charged in Counts 53–62 of the indictment with concealment money
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`laundering in violation of Section 1956(a)(1)(B) of Title 18 of the United States Code. For
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`each defendant to be found guilty of that charge, the United States must prove each of the
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`following elements beyond a reasonable doubt:
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`First, the defendant conducted a financial transaction involving property that
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`represented the proceeds of promoting, managing, establishing, carrying on, or facilitating
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`the promotion, management, establishment, or carrying on, of any business enterprise
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`involving prostitution offenses;
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`Second, the defendant knew that the property represented the proceeds of some form
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`of unlawful activity; and
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`Third, the defendant knew that the transaction was designed in whole or in part to
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`conceal or disguise the nature, location, source, ownership, or control of the proceeds of
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`the specific unlawful activity.
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`Count 63–68: International Promotional Money Laundering
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`Defendants are charged in Count 63–68 of the indictment with transporting funds
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`to promote unlawful activity in violation of Section 1956(a)(2)(A) of Title 18 of the United
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`States Code. For each defendant to be found guilty of that charge, the United States must
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`prove each of the following elements beyond a reasonable doubt:
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`First, the defendant transported money from a place in the United States to or
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`through a place outside the United States; and
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`Second, the defendant acted with the intent to promote the carrying on of the
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`specified criminal activity charged in the indictment, that is promoting or facilitating the
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`promotion of any business enterprise involving prostitution offenses.
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`Count 69–99: Transactional Money Laundering
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`Defendants are charged in Counts 69–99 of the indictment with transactional money
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`laundering in violation of Section 1957 of Title 18 of the United States Code. For each
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`defendant to be found guilty of that charge, the United States must prove each of the
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`following elements beyond a reasonable doubt:
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`First, the defendant knowingly engaged or attempted to engage in a monetary
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`transaction;
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`Second, the defendant knew the transaction involved criminally derived property;
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`Third, the property had a value greater than $10,000;
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`Fourth, the property was, in fact, derived from specified unlawful activity, that is
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`promoting or facilitating the promotion of any business enterprise involving prostitution
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`offenses; and
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`Fifth, the transaction occurred in the United States
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`Count 100: International Concealment Money Laundering
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`Defendants are charged in Count 100 of the indictment with transporting money for
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`the purpose of laundering in violation of Section 1956(a)(2)(B) of Title 18 of the United
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`States Code. For each defendant to be found guilty of that charge, the United States must
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`prove each of the following elements beyond a reasonable doubt:
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`First, the defendant transported money from a place in the United States to or
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`through a place outside the United States;
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`Second, the defendant knew that the money represents the proceeds of promoting
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`or facilitating the promotion of any business enterprise involving prostitution offenses; and
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`Third, the defendant knew the transportation was designed in whole or in part to
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`conceal or disguise the nature, location, source, ownership, or control of the proceeds of
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`promoting or facilitating the promotion of any business enterprise involving prostitution
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`offenses.
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`1.13 SEPARATE CONSIDERATION FOR EACH DEFENDANT
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`Although the defendants are being tried together, you must give separate
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`consideration to each defendant. In doing so, you must determine which evidence in the
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`case applies to each defendant, disregarding any evidence admitted solely against some
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`other defendants. The fact that you may find one of the defendants guilty or not guilty
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`should not control your verdict as to any other defendants.
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 15 of 64
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`UNITED STATES’ PROPOSED INSTRUCTION
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`4.9 DELIBERATE IGNORANCE
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`You may find that the defendant acted knowingly if you find beyond a reasonable
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`doubt that:
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`First, the defendant was aware of a high probability that the vast majority of the
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`“adult” and “escort” ads appearing on Backpage.com were actually ads for prostitution,
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`and
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`Second, the defendant deliberately avoided learning the truth.
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`You may not find such knowledge, however, if you find that the defendant actually
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`believed that the vast majority of the “adult” and “escort” ads appearing on Backpage.com
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`were not ads for prostitution, or if you find that the defendant was simply negligent,
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`careless, or foolish.
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`DEFENDANTS’ OBJECTION
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`The government’s proposed Jewell instruction, one that typically is used in drug
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`smuggling cases, is inappropriate here. See Ninth Circuit Model Criminal Jury Instructions
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`at 5.8 (providing the example of a defendant being aware of a high probability that “drugs
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`were in the defendant’s automobile”); United States v. Jewell, 532 F.2d 697, 698 (9th Cir.
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`1976) (involving drugs sealed in a secret compartment of a car).
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`The Travel Act and money laundering charges are specific intent crimes; it would
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`therefore be reversible error to provide a “Deliberate Ignorance” instruction to the jurors
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`here. See Jewell, 532 F.2d at 700-701 (such an instruction is only appropriate where the
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`underlying crime requires mere knowledge). See also United States v. Gibson Specialty
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`Co., 507 F.2d 446, 449 (9th Cir. 1974) (evidence that would establish that manufacturers
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`of gambling paraphernalia repeatedly sold punchboards and pulltabs to distributors in
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`Montana, despite knowing that the mere possession of punchboards and pulltabs violated
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`Montana’s gambling laws, was insufficient to establish a violation of the Travel Act,
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`because the Travel Act is a specific intent crime, “intent to facilitate a criminal venture is
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`expressly made part of the offense,” and, therefore, “the prosecutor must show that the
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`manufacturer in some significant manner associated himself with the purchaser’s criminal
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`venture for the purpose of its advancement”). The Ninth Circuit expressly rejected the
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`government’s contention that the “presumption that one intends the natural and probable
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`consequences of his actions” was sufficient “to establish intent to facilitate criminal
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`activity” because it was “as likely as not that a vendor similar to the defendants in this
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`proceeding is totally indifferent to the actions of his purchaser.” Id. at 450 fn.8. See also
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`United States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986) (a “defendant is entitled to an
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`instruction as to the elements of the offense charged” and “[o]ne element of a Travel Act
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`violation is proof of specific intent to promote ‘unlawful activity.’”); United States v.
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`James, 210 F.3d 1342, 1345 (11th Cir. 2000) (same); see Ninth Circuit Model Criminal
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`Jury Instructions at 18.3 cmt. (“Because it is a specific intent crime, it is reversible error to
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`give Instruction 4.8 (Knowingly–Defined) in a money laundering case.”) (citing United
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`States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994). Cf. United States v. Turman, 122 F.3d
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`1167, 1169 (9th Cir. 1997)).
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`Further, such an instruction is only appropriate “if the jury rejects the government’s
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`case as to actual knowledge.” United States v. Heredia, 483 F.3d 913, 922 (9th Cir. 2007)
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`(“In deciding whether to give a willful blindness instruction, in addition to an actual
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`knowledge instruction, the district court must determine whether the jury could rationally
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`find willful blindness even though it has rejected the government's evidence of actual
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`knowledge. If so, the court may also give a Jewell instruction.”). And “[e]ven if the factual
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`predicates of the instruction are present, the district judge has discretion to refuse it.” Id.
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`Further, even if such an instruction were appropriate, whether a given defendant
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`“was aware of a high probability that the vast majority of the ‘adult’ and ‘escort’ ads
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`appearing on Backpage.com were actually ads for prostitution” is not a substitute for the
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`government having to prove beyond a reasonable doubt that each defendant specifically
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`intended to facilitate the prostitution offenses committed by the particular business
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`enterprise associated with one or more of the fifty advertisements at issue in Counts 2-51
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`through publishing the ad(s). See United States v. Lacey, et al. (D. Ariz.), Case No. 18-
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`CR-00422-PHX-SMB, Doc. No. 946 at 13 (Order denying motion to dismiss)
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`(“[Defendants] were not indicted for facilitating the amorphous notion of ‘prostitution.’
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`They were indicted for facilitating (via publishing ads) on fifty distinct occasions where
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`prostitutes, prostitution-related businesses, or other groups were involved in the business
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`of prostitution.”); see United States v. Lacey, et al. (D. Ariz.), Case No. 18-CR-00422-
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`PHX-SMB, Transcript of December 4, 2020 Hearing (“And I think one of the key things
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`in my reason for denying the recusal is that this case is not about Backpage. Backpage was
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`prosecuted in a separate case, entered a plea in a separate case. This case is about these
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`individual defendants and whether they had specific knowledge of these ads as facilitating
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`illegal activity.”). Willful blindness therefore cannot meet the elements of the offenses.
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`Additionally, even if a Jewell instruction was appropriate in this case, the
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`government’s proposed instruction ignores the language of Jewell restricting the
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`instruction to circumstances where a defendant’s ignorance “was solely and entirely a
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`result of . . . a conscious purpose to avoid learning the truth.” United States v. Jewell, 532
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`F.2d 697, 704 (9th Cir. 1976).
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`Finally, the government’s proposed Jewell instruction also is inconsistent with the
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`First Amendment. The government’s proposed instruction would suggest to the jury that
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`the government can prosecute the publisher of speech that is presumptively protected by
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`the First Amendment because the speech looked like it might be associated with unlawful
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`activity or because various parties claim that it was associated with unlawful activity. The
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`government, in effect, claims that it can do indirectly through the Travel Act what three
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`federal courts previously have held that the government cannot do directly—criminalize
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`the publication of third-party speech because it looks like speech associated with criminal
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`activity. Backpage.com, LLC v. Hoffman, Case No. 13–cv–03952 (DMC)(JAD),
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`2013 WL 4502097 (D.N.J. Aug. 20, 2013) (striking down, under First Amendment, state
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`statute criminalizing advertisements “that would appear to a reasonable person to be for
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`the purpose of engaging in what would be a commercial sex act…with a minor” and
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`Case 2:18-cr-00422-DJH Document 1656 Filed 08/02/23 Page 18 of 64
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`rejecting state’s claim that the statute “regulates illegal advertisements…not protected by
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`the First Amendment” because, among other things, “[d]escribing criminal conduct as
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`anything that is ‘implicit’ is inherently vague, because it means ‘[n]ot directly expressed
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`[and] existing [only] inferentially’ and ‘fails to clearly mark the boundary between what is
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`permissible and impermissible’”); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805
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`(M.D. Tenn. 2013) (striking down, under First Amendment, state statute criminalizing
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`advertisements “that would appear to a reasonable person to be for the purpose of engaging
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`in what would be a commercial sex act…with a minor” and rejecting state’s claim that the
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`statute did not “not implicate First Amendment scrutiny because it criminalize[d] only
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`offers to engage in illegal transactions” because, among other things, “the statute as written
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`does not ‘criminalize only offers to engage in illegal transactions’ because—as discussed
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`above—the statute’s potential reach extends to notices related to legal, consensual activity
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`by adults”); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1268, 1277 (W.D. Wash.
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`2012) (striking down, under First Amendment, state statute criminalizing “‘directly or
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`indirectly’ caus[ing] content to be published, disseminated or displayed if it contains a
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`‘depiction of a minor’ and any ‘explicit or implicit offer’ of sex for ‘something of value’”
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`because, among other things, the statute was unconstitutionally vague: “‘[A] speaker may
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`not be put at complete peril in distinguishing between protected and unprotected speech.
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`Otherwise, he could only be certain of avoiding liability by holding his tongue, causing
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`him ‘to make only statements which ‘steer far wide [ ] of the unlawful zone.’’).
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`The Court should not permit the government to suggest to the jury either that
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`defendants had an obligation to stop publishing facially lawful third-party speech on
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`Backpage.com because some of that speech might be associated with unlawful activity or
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`that the jury can find that defendants intended to violate the law because Backpage.com
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`did not stop publishing speech presumptively protected by the First Amendment. Greater
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`Philadelphia Chamber of Com. v. City of Philadelphia, 949 F.3d 116, 142 & fn.170 (3d
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`Cir. 2020) (rejecting city’s argument that speech “concern[ed] unlawful activity” where
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`the speech might relate to unlawful activity because “commercial speech should not lose
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`the protection of the First Amendment simply because a legislature has prohibited one of
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`many uses of the regulated speech,” unlike restricting “advertising of the sale of cocaine,
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`for example, [which] would present a speech restriction that always and only related to
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`illegal activity because there are no other legal uses/purposes behind the sale of cocaine”)
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`(emphasis in original); IMDB.com Inc. v. Bacerra, 962 F.3d 1111, 1123 (9th Cir. 2020)
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`(“Pittsburgh Press implicates only those instances when the state restricts speech that itself
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`proposes an illegal transaction…SAG’s interpretation of Pittsburgh Press would require
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`this court to permit the restriction not only of speech that proposes an illegal activity but
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`also facially inoffensive speech that a third-party might use to facilitate its own illegal
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`conduct. But as the Supreme Court has noted, ‘it would be quite remarkable to hold that
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`speech by a law-abiding possessor of information can be suppressed in order to deter
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`conduct by a non-law-abiding third party.’ Bartnicki v. Vopper, 532 U.S. 514, 529–30, 121
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`S.Ct. 1753, 149 L.Ed.2d 787 (2001)…Rather than restrict truthful speech, the typical
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`‘method of deterring unlawful conduct is to impose an appropriate punishment on the
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`person who engages in it.’ Bartnicki, 532 U.S. at 529, 121 S.Ct. 1753.”) (emphasis added);
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`Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F3d 104,
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`114 (2d Cir. 2017) (“[T]he First Amendment offers no protection to speech that proposes
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`a commercial transaction if consummation of that transaction would necessarily constitute
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`an illegal act. However, if, as here, there are plausible ways to complete a proposed
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`transaction lawfully, speech proposing that transaction ‘concerns lawful activity’ and is
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`therefore protected commercial speech.”) (emphasis in original); Valle Del Sol Inc.