Cato Institute Files Court Brief Opposing Govt’s Backpage Seizure

In April of 2018, the FBI and other federal law enforcement agencies seized and shut down the controversial online classified ad site Backpage, and hit the site and its management team with charges of “facilitating prostitution” and money laundering.  At the time, the lawyer for Backpage co-founder and owner Michael Lacey, Paul Cambria, called the shutdown “a massive assault on the First Amendment.”   Now, 10 months later, a trio of leading libertarian think tanks have filed an amicus curiae—or “friend of the court”—brief challenging the seizure of assets owned by Lacey and his partner Jim Larkin as a violation of their First Amendment rights. The brief was posted online by Reason magazine, whose parent the Reason Foundation is listed as a co-author of the brief. The DKT Liberty Project signed on as the third group submitting the brief, which argues that the government failed to show that the assets, which could total up to $100 million in cash and property, as AVN.com reported, fell outside the protection of the First Amendment. The brief cites a 1989 case in which the Supreme Court upheld the government’s right to seize assets “on probable cause”—except when those assets are “presumptively protected by the First Amendment.” “The government’s position appears to be that it is entitled to effect these seizures because the materials at issue are not actually protected by the First Amendment," the groups say in the court brief. “But the government has it backward. Proving that the materials are not protected by the First Amendment through an adversarial hearing is what the government must do before it is entitled to take them.” The brief goes on to say that materials that would be “presumptively” protected by the First Amendment’s guarantees of free expression include not only “newspapers, books, and their internet analogs” but any “assets for producing such material, as well as the proceeds from their dissemination.” In other words, the First Amendment protects not only the expression of ideas itself, but the money spent for publishing those ideas—and the money earned from publishing those ideas. At least according to the Cato court brief. “The First Amendment’s protections must reach such assets and proceeds to preserve the integrity of the marketplace of ideas,” the brief says. “If the government can selectively deprive certain speakers of the financial incentive to speak, then the government can silence the speakers themselves.” Reason has come to the defense of Backpage before, publishing an essay in November saying that the public perception that the advertising site had been charged with “sex trafficking” was incorrect, and created by inaccurate media coverage. “The actual charges included in the federal indictment against Lacey, Larkin, and several former colleagues say otherwise,” wrote Reason scribe Elizabeth Nolan Brown. “They stand accused of violating the Travel Act by facilitating prostitution, of money laundering, and of conspiracy.” Photo via Backpage.com