Backpage: A Frozen Asset’s Chance in Hell

 “The people I work for were smart enough to start”  – Tony Ortega

In a just world, the seizure of Backpage by the Feds in 2017 should have been the knock-out blow to online sex trafficking. Instead, the endless game of whack-a-mole continues as we await upcoming court hearings on the matter.

A month after Fosta-Sesta (the Backpage-inspired law designed to thwart online sex-traffickers) passed, ads for commercial sex over the Internet plummeted 82 percent, according to TellFinder, a data analytics tool originally built by the Defense Department. Tragically, however, within another four months, those numbers would rebound to 75 percent of their previous daily volume. New sites were popping up, seeking to fill the void left by Backpage, just as Backpage had done with Craigslist. (Underscoring just how derivative these copycats have been: one of the earlier knockoffs was called Bedpage.)

Despite it all, the Justice Department has remained committed to taking the Backpage defendants down. Since March 2018, federal prosecutors have seized more than $100 million in cash, real estate, and other assets from Lacey and Larkin. The strategy is simple: No money? No lawyers. End of story.

Or as one legal observer noted: “If a jury ever sees the evidence, Backpage won’t have a snowball’s chance in hell.”

As we explained in a previous post about asset freezes, generally speaking, federal prosecutors are permitted to freeze a defendant’s assets based on probable cause alone.

The matter becomes a little complicated however, as regular forfeiture rules do not apply in cases involving forums for speech—newspapers, films, books, magazines, websites. The US Supreme Court has decided that when the government seizes these expressive materials, or the proceeds derived from them, it must immediately hold an evidentiary hearing to determine whether the seizure is valid. The question is: Is Backpage selling human beings for sex what the framers of the Constitution had in mind when they wrote of free speech?

It would seem in this, Backpage defendants have a well-earned credibility problem. So far, they can’t find seem to find a court willing to entertain their specious ‘free speech” claims.

Indeed, since last summer, the Justice Department appears to be showing the Backbage criminals no mercy. They’ve brought cases against the Backpage defendants in two federal districts—civil seizures in Los Angeles, criminal matters in Phoenix—and they’re making the defendants spend what money they have left chasing the government’s full-court press from place to place.

Happily, so far the judges in both districts have agreed with the government’s suggestion that they should defer to each other, effectively denying the defendants their ability to attempt an end-run around the law by challenging the asset freezes.

The US Court of Appeals for the Ninth Circuit will hear arguments in the case this month. Stay tuned to this blog for all the latest updates!

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