1 Thomas H. Bienert, Jr.

(CA 135311, admitted pro hac vice)

1
Whitney Z. Bernstein (CA 304917, admitted pro hac vice)
2 BIENERT | KATZMAN PC
2
3 903 Calle Amanecer, Suite 350
3 San Clemente, California 92673
4 Telephone: (949) 369-3700
4
Facsimile: (949)369-3701
5 tbienert@bienertkatzman.com
5
6 wbernstein@bienartkatzman.com
6 Attorneys for James Larkin
7
7
Gary S. Lincenberg (admitted pro hac vice)
8
8 glincenberg@birdmarella.com
9 Ariel A. Neuman (admitted pro hac vice)
9 aneuman@birdmarella.com
10 Gopi K. Panchapakesan (admitted pro hac vice)
10
gpanchapakesan@birdmarella.com
11
11 BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
12 DROOKS, LINCENBERG & RHOW, P.C.
12 1875 Century Park East, 23rd Floor
13 Los Angeles, California 90067-2561
13
14 Telephone: (310) 201-2100
14 Facsimile: (310) 201-2110
15 Attorneys for Defendant John Brunst
15
16
16 [Additional counsel listed on next page]
17 IN THE UNITED STATES DISTRICT COURT
17
18 FOR THE DISTRICT OF ARIZONA
18
19
19
20 United States of America, CASE NO. 2:18-cr-00422-PHX-SMB
20
21
21 Plaintiff, DEFENDANTS’ MOTION TO DISMISS
22 vs. INDICTMENT BASED ON SECTION
22 230 OF THE COMMUNICATIONS
23 Michael Lacey, et al., DECENCY ACT OR,
23
24
ALTERNATIVELY, AS VOID FOR
24 Defendants. VAUGENESS
25
25
26
26
27
27
28
28

DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE

COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 Paul J. Cambria, Jr. (admitted pro hac vice)
1
pcambria@lglaw.com
2 Erin McCampbell (admitted pro hac vice)
emccampbell@lglaw.com
3 LIPSITZ GREEN SCIME CAMBRIA LLP
42 Delaware Avenue, Suite 120
4
Buffalo, New York 14202
5 Telephone: (716) 849-1333
Facsimile: (716) 855-1580
6 Attorneys for Defendant Michael Lacey
7
Bruce Feder (AZ Bar No. 004832)
8 bf@federlawpa.com
FEDER LAW OFFICE, P.A.
9 2930 E. Camelback Road, Suite 160
10 Phoenix, Arizona 85016
Telephone: (602) 257-0135
11 Attorney for Defendant Scott Spear
12 David Eisenberg (AZ Bar No. 017218)
13 david@deisenbergplc.com
DAVID EISENBERG PLC
14 3550 N. Central Ave., Suite 1155
Phoenix, Arizona 85012
15
Telephone: (602) 237-5076
16 Facsimile: (602) 314-6273
Attorney for Defendant Andrew Padilla
17
Joy Malby Bertrand (AZ Bar No. 024181)
18
joy.bertrand@gmail.com
19 JOY BERTRAND ESQ LLC
P.O. Box 2734
20 Scottsdale, Arizona 85252
21 Telephone: (602)374-5321
Facsimile: (480)361-4694
22
Attorney for Defendant Joye Vaught
23
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2
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 INTRODUCTION
2 The instant case must be dismissed based on Section 230 of the Communications
3 Decency Act, 47 U.S.C. § 230. The government is prosecuting defendants, all of whom were
4 publishers of third-party content on an interactive computer service, under the Travel Act
5 for allegedly facilitating state law prostitution offenses by publishing classified ads posted by
6 third parties. Superseding Indictment (“SI”), Counts 2-51, at paragraphs 200-201, pp 49-54
7 (using words “Publish ad” for each off the 50 counts).
8 The Travel Act criminalizes the use of facilities in interstate commerce in furtherance
9 of an underlying “unlawful activity.” 18 U.S.C. § 1952(a). The government alleges
10 defendants used the mail and facilities in interstate commerce to promote unlawful activity in
11 violation of state laws and, in particular:
12 prostitution offenses in violation of the laws of the State in which they are
13 committed, and of the United States, including but not limited to Title 13,
14 Arizona Revised Statutes, Section 13-3214, and thereafter performed and
15 attempted to perform an act that did promote . . . and facilitate . . . the
16 unlawful activity . . .
17 SI at paras 200-201, pp.49-50.1
18 Under the Travel Act, “[w]hen the unlawful activity charged in the indictment is the
19 violation of state law, the commission of or the intent to commit such a violation is an
20 element of the federal offense.” United States v. Bertman, 686 F.2d 772, 774 (9th Cir. 1982)
21 (citations omitted); see also, United States v. Hiatt, 527 F.2d 1048, 1051 (9th Cir. 1975) (“[T]he
22 existence of a state law violation is an element of the violation of the Travel Act and [] the
23 court must make a determination of whether the underlying state law has been or could have
24 been violated”). “The government thus must prove as part of a Travel Act charge that the
25
1 As set forth in Mr. Brunst’s motion to dismiss based on failure to allege necessary
26 elements of the Travel Act (Doc. 746), the “unlawful activity” cannot be just “prostitution” in
violation of state laws, but must be a “business
27
enterprise involving . . . prostitution offenses in violation of the laws of the State in which they
28 are committed”—something the government has not alleged.
3
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 defendant has or could have violated the underlying state law, and the defendant may assert
2 any relevant substantive state law defense.” Bertman, 686 F.2d at 774.
3 In the instant case, defendants cannot be found of state prostitution. They are
4 publishers, and are not alleged to have acted as pimps, johns or prostitutes. As publishers,
5 they were immune from prosecution for violating state laws through publishing third-party
6 content on their website. Section 230 of the Communications Decency Act, 47 U.S.C. §
7 230. Section 230 of the Communications Decency Act (“CDA”) grants immunity to
8 interactive computer services such as Backpage.com for any liability based on publishing
9 third-party content or for failing to remove any such content, regardless of any allegations
10 that the website knew or should have known known that third-parties were posting illegal
11 content. While Section 230 generally does not preempt federal criminal prosecutions, it
12 expressly preempts all state criminal laws. Because the instant federal Travel Act charge is
13 derivative of the unlawful activity of state prostitution, a charge for which defendant
14 publishers are absolutely immune, Section 230 precludes prosecution of this case under the
15 federal Travel Act. Because the SI fails to state an offense, the Court should dismiss the case
16 pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v). And even if Section 230
17 does not preclude a derivative prosecution under the Travel Act, the statutes as applied to
18 defendants fail to give adequate notice of criminality and, consequently, the charges must be
19 dismissed as void for vagueness. 2
20 I. SECTION 230 OF THE COMMUNICATIONS DECENCY ACT
REQUIRES DISMISSAL OF THE INSTANT CASE
21
22
23
24
2 Federal Rule of Criminal Procedure 12(b) allows consideration at the pretrial stage of
“[a]ny defense, objection, or request which is capable of determination without the trial of
25 the general issue.” Here, Defendants are challenging the Indictment on two grounds that
can be adjudicated prior to trial: (1) the improper predication of the Travel Act on state
26 prostitution claims, against defendants who are immune to prosecution for such claims; and,
27 (2) void for vagueness with respect to the use of the Travel Act and state prostitution laws in
such a matter.
28
4
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 A. Section 230 immunizes publishers such as Backpage.com and defendants
1
from state law prosecution
2
Section 230(c)(1) states “[n]o provider or user of an interactive computer service shall
3
4 be treated as the publisher or speaker of any information provided by another information

5 content provider.” 47 U.S.C. § 230(c)(1). Section 230(e)(3) states “no liability may be

6 imposed under any State or local law that is inconsistent with this section.” The statute

7 exempts (among others) federal criminal statutes. Id. § 230(e)(1), (2).

8 Courts have recognized that Section 230 “creates a federal immunity to any cause of

9 action that would make service providers liable for information originating with a third-party

10 user.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). “[L]awsuits seeking to hold

11 a service provider liable for its exercise of a publisher’s traditional editorial functions—such

12 as deciding whether to publish, withdraw, postpone or alter content—are barred.” Id.

13 Likewise, Section 230 forbids claims against a website “for the exercise of its editorial and

14 self-regulatory functions” about whether to block or allow content. Id. at 331. “[A]ny

15 activity that can be boiled down to deciding whether to exclude material that third parties

16 seek to post online is perforce immune under section 230.” Fair Hous. Council of San Fernando

17 Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170-71 (9th Cir. 2008) (en banc) (emphasis

18 added); Carafano v. Metrosplash, 339 F.3d 1119, 1124 (9th Cir. 2003) (“[u]nder section 230(c),

19 … so long as a third party willingly provides the essential published content, the interactive

20 service provider receives full immunity regardless of the specific editing or selection

21 process”).

22 Section 230 immunity applies and protects a website notwithstanding allegations that

23 it knew or should have known of unlawful content or conduct, as “[s]ubjecting service

24 providers to notice liability would defeat ‘the dual purposes’ of section 230, by encouraging

25 providers to restrict speech and abstain from self-regulation.” Zeran, 129 F.3d at 333. “It is,

26 by now, well established that notice of the unlawful nature of the information provided is

27 not enough to make it the service provider’s own speech.” Universal Comm’n Sys. v. Lycos, 478

28 F.3d 413, 420 (1st Cir. 2007). Section 230 provides “an immunity from suit rather than a mere
5
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 defense to liability.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th
2 Cir. 2009) (emphasis in original). As a result, courts uniformly hold that claims against
3 online providers based on third-party content should be dismissed at the earliest possible
4 opportunity. Roommates.com, LLC, 521 F.3d 1157, 1174, 1175 (9th Cir. 2008) (en banc).
5 Federal courts have dismissed civil suits against Backpage under section 230. Doe v.
6 Backpage.com, LLC, 104 F. Supp. 3d 149, 152, 157 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir.
7 2016), cert. denied, 137 S. Ct. 622 (2017) (holding that Backpage.com’s editorial choices were
8 protected and rejecting claims that its policies sought to promote “illicit sex trade” and
9 “trafficking of children”; Backpage’s practices “[s]ingly or in the aggregate … amount to
10 neither affirmative participation in an illegal venture nor active web content creation”; “[t]he
11 existence of an escorts section in a classified ad service, whatever its social merits, is not
12 illegal”); M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1051, 1053-55
13 (E.D. Mo. 2011) (dismissing all claims despite allegations that the website’s structure and
14 operation, and Backpage’s alleged knowledge of illegal activity and exercise of editorial
15 functions, made it culpable for sex trafficking; “even if a service provider knows that third
16 parties are posting illegal content, ‘the service provider's failure to intervene is immunized’”;
17 “Congress has decided that the parties to be punished and deterred are not the internet
18 service providers but rather are those who created and posted the illegal material”).
19 State criminal charges against Backpage and its personnel for facilitating prostitution
20 have also been dismissed based on Section 230. After the California Attorney General
21 brought criminal pimping charges against Backpage and several of its personnel, the state
22 court dismissed the charges based on application of Section 230. People v. Ferrer, No.
23 16FE024013 (Cal. Super. Ct. Aug. 23, 2017) (taking into account First Amendment interests,
24 holding that Backpage.com’s provision of “a forum for online publishing” and receiving
25 payments for ads “qualify as services rendered for legal purposes,” insufficient to support
26 charges of pimping, facilitating prostitution or money laundering); People v. Ferrer, 2016 WL
27 7237305 (Cal. Super. Ct. Dec. 9, 2016) (dismissing state’s pimping charges against Larkin and
28
6
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 Lacey premised on allegations they actively furthered prostitution, noting the only “whiff of
2 illegality” in the AG’s complaint improperly “require[ed] the presumption that illegal content
3 was contained in the ads,” yet the website’s actions in posting the ads “would not be illegal”).
4 Indeed, multiple federal courts also have applied Section 230 (and the First
5 Amendment) to strike down state criminal laws targeting Backpage.com. All three federal
6 courts that reviewed state criminal laws aimed at making Backpage criminally responsible for
7 the content posted by its users held that the laws were invalid and Backpage.com was
8 entitled to immunity under Section 230. Backpage.com v. McKenna, 881 F. Supp. 2d 1262, 1273
9 (W.D. Wash. 2012) (striking Washington law imposing liability on Backpage.com for 3rd
10 party-created information that advertised commercial sex acts); Backpage.com, LLC v. Cooper,
11 939 F. Supp. 2d 805, 823 (M.D. Tenn.) (enjoining Tennessee statute because it “impose[d]
12 liability on websites such as Backpage.com for selling or offering to sell advertisements,
13 activity inherent in their role as publishers”); Backpage.com, LLC v. Hoffman, 2013 WL
14 4502097, at 7 (D.N.J. Aug. 20, 2013) (similar law violated Section 230 “by imposing liability
15 … for information created by third parties—namely ads for commercial sex acts depicting
16 minors”).
17 The instant prosecution of defendants should fare no better because the Travel Act
18 charge in this case is based on underlying state prostitution laws. As noted above, Section
19 230 generally does not impair enforcement under “federal criminal statute.” This limitation
20 would clearly appear to vitiate Section 230 immunity if defendants’ underlying “unlawful
21 activity” was a substantive federal crime. But defendants are not charged based on
22 underlying federal criminal activity; instead they are being prosecuted based on underlying
23 state prostitution offenses. 3 Because Section 230 immunizes publishers such as
24
25
26 3 The Travel Act’s definition of “unlawful activity” includes “a business enterprise
27 involving . . . prostitution offenses in violation of the laws of the State in which they are
committed.” 18 U.S.C. § 1952(b).
28
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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 Backpage.com for such acts, defendants could not “have violated the underlying state law.”
2 Bertman, 686 F.2d at 774.
3 B. Because the defendants’ conviction for the underlying state law offense is a
legal impossibility, the Travel Act charge cannot be sustained
4
5 As noted above, the criminal activity underlying the Travel Act charges, namely state

6 law prostitution offenses, are crimes against which Section 230 immunizes defendants.

7 Accordingly, defendants’ conviction for the underlying state law offense on which the Travel

8 Act charge is based is, as a matter of law, is a legal impossibility and no Travel Act charge

9 can proceed.

10 Courts have recognized that the Travel Act is not available to prosecute a defendant

11 who could not have committed the underlying crime. In United States v. Fernandez, the First

12 Circuit reversed the defendant’s conviction for conspiracy to violate the Travel Act based on

13 alleged violations of Puerto Rico bribery law and directed the district court to enter a

14 judgment of acquittal. See 722 F.3d 1 (1st Cir. 2013). The First Circuit held that the

15 defendant’s conviction was a “legal impossibility” because the travel underlying the charge

16 was to take place on a date nearly 2 weeks after Puerto Rico repealed the bribery laws

17 underpinning the Travel Act charges, so no statute prohibited the defendant’s conduct on

18 the date he planned to engage in it. See id. at 31-32 (“In short, Defendants were ‘conspiring’

19 to do something that would not be prohibited by these Puerto Rico bribery laws on the date

20 they planned to do it”). According to the First Circuit, “with respect to the Puerto Rico

21 bribery basis for the alleged Travel Act violation, ‘since the conduct allegedly underlying the

22 conspiracy was not a crime, no ... conspiracy to commit that conduct can exist either.’” Id. at

23 32, citing United States v. Ali, 561 F. Supp. 2d 265, 267 (E.D.N.Y. 2008). In the instant case,

24 regardless of whether those committing actual acts of prostitution or illegal sex trafficking

25 can be charged and convicted, a publisher is immune under Section 230 from prosecution

26 under state law for its publication of advertisements by such persons. In short, “the conduct

27
28
8
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 allegedly underlying the conspiracy was not a crime” as to a publisher, so prosecution of a
2 publisher is a legal impossibility.
3 Similarly, in United States v. Tonry, 837 F.2d 1281 (5th Cir. 1988), the Fifth Circuit
4 vacated the defendant’s conviction and sentence for conspiracy to violate the Louisiana
5 Commercial Bribery statute and two substantive violations of the Travel Act. The
6 government alleged that the defendant had bribed a chairman of a Native American tribe to
7 induce him to sign a bingo contract and traveled from New Orleans to the Bureau of Indian
8 Affairs in Washington D.C. to facilitate the approval of the contract. Id. at 1281-82. The
9 Fifth Circuit held that the Louisiana Commercial Bribery statute did not reach bribery of
10 non-Louisiana public officials and, therefore, the defendant was not guilty of violating the
11 Travel Act. See id. at 1284-85 (“Tonry committed no crime under Louisiana law. In so
12 holding, we do not condone Tonry's behavior. The bribing of anyone is certainly ethically
13 and morally repugnant. However, in this case, it was not illegal”). The Tonry case is
14 particularly instructive because, as in the instant case, a valid criminal state law exists that
15 could apply to certain wrongdoers but that law could not apply to the defendant in the case,
16 making Travel Act prosecution invalid.
17 Even more on point, although stated in dicta in a case involving different issues, in
18 United States v. Costello, 307 F.3d 553, 555 (7th Cir. 2002), the Seventh Circuit observed what
19 would seem to be the common sense notion that “section 1952 [Travel Act prosecution] is
20 confined to illegal prostitution, and so would not apply to prostitution in the handful of
21 counties in Nevada in which brothels are legal.” If one cannot be prosecuted under the
22 Travel Act for travelling to a place where prostitution is legal under state law, one also
23 cannot be charged under the Travel Act for publishing activity related to alleged prostitution
24 for which the defendants have absolute immunity.
25 Indeed, the government and other actors for the government recognized that the
26 federal statutes simply didn’t allow prosecution of defendants. For example, Ernie Allen, the
27
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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 former President of the National Center for Missing & Exploited Children (NCMEC) 4
2 wrote about his efforts to get federal and state prosecutors to take action against Backpage
3 based on its “facilitation” of prostitution:
4 Two years ago, I met with Attorney General Eric Holder on this. The sites
5 were blatant. The young women in the ads were nude, there were graphic
6 images of sex acts, and there was advertising and links to the so-called “John
7 boards,” like Erotic Review, which provide detailed reviews of the services
8 provided by each young woman. I asked how anyone could argue that the
9 operators of these sites didn’t know the purpose for which they were used.
10 The Attorney General sent some Criminal Division prosecutors over to meet
11 with me, and I laid out my arguments. They concluded that the mens rea
12 standard (the legal standard that requires that an act be knowing and
13 intentional) could not be overcome for a site like Backpage which by that time
14 had eliminated nudity in the ads, eliminated pornographic images, stopped
15 links to the John boards, and was making a good faith effort to screen,
16 monitor and report.
17 So, I began to speak to state AGs and District Attorneys. I met with lots of
18 them. What I found is there are a number of prosecutors who are eager to
19 bring these prosecutions and think they are a “slam dunk.” However, they
20 feel they are barred by the language of Section 230 of the Communications
21 Decency Act, which effectively creates preemption for the federal government
22 and precludes state prosecution.
23 Exhibit A, Email from Ernie Allen, July 19, 2013.
24
25
26
4 As noted in Defendants Motion for Production of Brady Material, filed the same day
27
as this motion, NCMEC is an organization that has repeatedly been held to be an agent of
28 the government.
10
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 Mr. Allen’s email makes clear that he and prosecutors recognized full well what court
2 holdings and statutes demonstrate: Backpage’s publishing did not violate available federal
3 statutes and prosecution under state laws was barred by Section 230.
4 II. EVEN IF NOT PRECLUDED, THE INTERSTATE TRAVEL ACT
5 WHEN COMBINED WITH THE UNDERLYING STATE
PROSTITUTION OFFENSE IS VOID FOR VAGUENESS
6
7 At a minimum, the application of the Travel Act in the instant case is fatally vague

8 and must be dismissed on that basis. “A criminal statute must clearly define the conduct it

9 proscribes.” United States v. Skilling, 561 U.S. 358, 415 (2010) (Scalia, J., concurring in part)

10 (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). “Overly vague penal statutes

11 violate due process.” United States v. Twombly, 475 F. Supp. 2d 1019, 1022 (S.D. Cal. 2007).

12 “A criminal statute is void for vagueness if it is ‘not sufficiently clear to provide guidance to

13 citizens concerning how they can avoid violating it and to provide authorities with principles

14 governing enforcement.’” United States. v. Zhi Yong Guo, 634 F.3d 1119, 1121 (9th Cir. 2011)

15 (quoting United States v. Jae Gab Kim, 449 F.3d 933, 942 (9th Cir. 2006)). In other words, “[a]

16 statute is unconstitutionally vague on its face if it ‘fails to provide a person of ordinary

17 intelligence fair notice of what is prohibited, or is so standardless that it authorizes or

18 encourages seriously discriminatory enforcement.’” United States v. Kilbride, 584 F.3d 1240,

19 1257 (9th Cir. 2009) (quoting United States v. Williams, 553 U.S. 285, 304 (2008).

20 “The statute will meet the requirement of ‘certainty required by the Constitution if its

21 language conveys sufficiently definite warning as to the proscribed conduct when measured

22 by common understanding and practices.’” Panther v. Hames, 991 F.2d 576, 578 (9th Cir.

23 1993) (quoting Turf Center, Inc. v. United States, 325 F.2d 793, 795 (9th Cir.1963)). “Our

24 doctrine prohibiting the enforcement of vague laws rests on the twin constitutional pillars of

25 due process and separation of powers.” United States v. Davis, 139 S. Ct. 2319, 2325 (2019)

26 (citation omitted). “Vague laws contravene the first essential of due process of law that

27 statutes must give people of common intelligence fair notice of what the law demands of

28
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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 them.” Id. (citations and quotations omitted). “Vague laws also undermine the Constitution’s
2 separation of powers and the democratic self- governance it aims to protect . . . [by]
3 threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police,
4 prosecutors, and judges, eroding the people's ability to oversee the creation of the laws they
5 are expected to abide.” Id. (citations omitted).
6 “[T]he requirement for clarity is enhanced” for prosecutions involving the First
7 Amendment. Kilbride, 584 F.3d at 1257 (quoting Information Providers’ Coalition for the Defense of
8 the First Amendment v. FCC, 928 F.2d 866, 874 (9th Cir. 1991)). “‘[O]rdinarily a [party] who
9 engages in some conduct that is clearly proscribed cannot complain of the vagueness of the
10 law as applied to the conduct of others’”; however, the Supreme Court has “‘relaxed that
11 requirement in the First Amendment context.’” Kilbride, 584 F.3d at 1257 (quoting Williams,
12 553 U.S. at 304). “A statute is unconstitutionally vague as applied if it failed to put a
13 defendant on notice that his conduct was criminal.” Kilbride, 584 F.3d at 1257 (citing United
14 States v. Purdy, 264 F.3d 809, 811 (9th Cir. 2011) (emphasis added)). “An as-applied
15 vagueness claim is viable when a particular application of an otherwise-permissible statute
16 stretches the breadth of the statute further than could be reasonably anticipated.” Acosta v.
17 Huppenthal, No. CV 10-623-TUC-AWT, 2013 WL 871892, at *12 (D. Ariz. Mar. 8, 2013)
18 (citing Kilbride, 584 F.3d at 1257), aff’d in part, rev’d in part on other grounds, and remanded by Arce
19 v. Douglas, 793 F.3d 968 (9th Cir. 2015). An as-applied challenge can be ruled on at the pre-
20 trial stage. See, e.g., United States v. Wright, No. 2:14-cr-357-APG-VCF, 2015 WL 9958034 (D.
21 Nev. Dec. 24, 2015), report and recommendation adopted by 2016 WL 438957.
22 Defendants in this action did not have fair and reasonable warning that their
23 publishing conduct could violated the Travel Act as applied to potential state law
24 prostitution offenses. Section 230 indicates and cases interpreting it expressly find that
25 publishers have immunity for prosecution “under any state or local law.” The Travel Act
26 itself indicates it can only proceed if linked with “unlawful activity.” See 18 U.S.C. § 1952(a),
27 (b). In the case of prostitution, the defendants are immune for their conduct being
28
12
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 “unlawful” as it relates to publishing ads of third parties. The Travel Act and Section 230 do
2 not put defendants on notice that their conduct was criminal.
3 The statute’s vagueness is only highlighted when applied to defendants. They were
4 repeatedly on notice by numerous courts that their publishing of third-party content at
5 Backpage was not illegal, because they had immunity from prosecution for state crimes based
6 on their publishing of third-party content. Moreover, they were engaged in conduct that
7 Congress, through the Communications Decency Act, sought to incent—and it makes no
8 sense that Congress would create a statutory scheme to incent certain conduct, but also
9 allow that conduct to be prosecuted under a federal law that bootstraps federal criminal
10 liability from a state crime for which a defendant was immunized from prosecution. Far
11 from meeting the requirement that notice provide “guidance . . . concerning how
12 [defendants] can avoid violating [the statutes]” and “provide authorities with principles
13 governing enforcement,” Zhi Yong Guo, 634 F.3d at 1121, numerous court decisions
14 informed defendants that their publishing was legal and defendants knew they were immune
15 from prosecution on state law theories, like prostitution offenses.
16 If Department of Justice lawyers specifically tasked by the Attorney General to assess
17 whether Backpage could be prosecuted under Federal law concluded that Federal law did
18 not permit such a prosecution, see Exhibit A, how would a person of ordinary intelligence
19 fairly conclude that he was at risk of prosecution for engaging in the same conduct that
20 prosecutors concluded was not proscribed?
21 The Travel Act charges, Counts 2-51 of the SI, must be dismissed as impermissibly
22 vague as applied to defendants.
23 III. THE CONSPIRACY AND MONEY LAUNDERING CHARGES MUST
24 BE DISMISSED

25 If the Travel Act counts are dismissed, then the conspiracy charge (Count 1) and the
26 money laundering counts (Counts 52 to 100) also must be dismissed.
27
28
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DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 1 The conspiracy and money laundering counts are based on the alleged prostitution
2 underpinning the Travel Act violations. The alleged conspiracy was to commit “Travel Act
3 – Facilitate Prostitution.” SI at para 196, p. 49. The purportedly laundered money allegedly
4 came from prostitution. E.g., SI at para 177, p. 44. (“Backpage’s customers
5 overwhelmingly used the proceeds from criminal activity (i.e., money earned from pimping
6 and prostitution) when purchasing ads on Backpage. In addition, because Backpage’s
7 publication of such ads was an independent crime (e.g., violation of 18 USC section 1952),
8 the fees it collected from customers posting prostitution ads – estimated at more than $500
9 million – constituted proceeds of unlawful activity.”)
10 When the Travel Act counts fail, the other counts based on the same alleged conduct
11 necessarily fail.
12 CONCLUSION
13 The Superseding Indictment is entirely premised on the theory that defendants
14 publishing activities promoted prostitution in violation of state laws. Given that defendants
15 are immune from prosecution under state laws for their publishing activities, the charges in
16 the Superseding Indictment must be dismissed.
17
18 DATED: October 18, 2019 BIENERT | KATZMAN PC

19
/s/ Thomas H. Bienert, Jr.
20 Thomas H. Bienert, Jr.
Whitney Z. Bernstein
21 Attorneys for James Larkin
22
23 Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures
Manual (May 2018) § II (C) (3), Thomas H. Bienert, Jr. herby attests that all other
24 signatories listed, and on whose behalf this filing is submitted, concur in the filing’s
25 content and have authorized its filing.

26
27
28
14
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 DATED: October 18, 2019 Gary S. Lincenberg
1
Ariel A. Neuman
2 Gopi K. Panchapakesan
BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
3 DROOKS, LINCENBERG & RHOW, P.C.
4 By: /s/ Ariel A. Neuman
5 Ariel A. Neuman
Attorneys for John Brunst
6
7
DATED: October 18, 2019 Paul J. Cambria, Jr.
8 Erin E. McCampbell
LIPSITZ GREEN SCIME CAMBRIA LLP
9
By: /s/ Paul J. Cambria, Jr.
10
Paul J. Cambria, Jr.
11 Attorneys for Michael Lacey
12
DATED: October 18, 2019 Bruce Feder
13
FEDER LAW OFFICE, P.A.
14
By: /s/ Bruce Feder
15 Bruce Feder
16 Attorneys for Scott Spear

17
DATED: October 18, 2019 David Eisenberg
18 DAVID EISENBERG, P.L.C.
19 By: /s/ David Eisenberg
20 David Eisenberg
Attorneys for Andrew Padilla
21
22 DATED: October 18, 2019 Joy Bertrand
23 JOY BERTRAND, ESQ.

24 By: /s/ Joy Bertrand

Joy Bertrand
25 Attorneys for Joye Vaught
26
27
28
15
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS
 CERTIFICATE OF SERVICE
1
2 I certify that on this 18th day of October, 2019, I electronically transmitted a PDF
3 version of this document to the Clerk of the Court, using the CM/ECF System, for filing and
for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants listed
4 below.
5 s/ Toni Thomas
6 Toni Thomas

7 Anne Michelle Chapman, anne@mscclaw.com

8 Erin E. McCampbell, emccampbell@lglaw.com
Anthony R. Bisconti, tbisconti@bienertkatzman.com
9
Ariel A. Neuman, aan@birdmarella.com
10 Bruce S. Feder, bf@federlawpa.com
11 James C. Grant, jimgrant@dwt.com
Lee David Stein, lee@mscclaw.com
12
Paul J. Cambria, pcambria@lglaw.com
13 Robert Corn-Revere, bobcornever@dwt.com
14 Ronald Gary London, ronnielondon@dwt.com
Janey Henze Cook, janey@henzecookmurphy.com
15
John Lewis Littrell, jlittrell@bmkattorneys.com
16 Seetha Ramachandran, Seetha.Ramachandran@srz.com
17 Thomas H. Bienert, Jr. tbienert@bienertkatzman.com
Whitney Z. Bernstein, wbernstein@bienertkatzman.com
18
Gary S. Lincenberg, glincenberg@birdmarella.com
19 Gopi K. Panchapakesan, gpanchapakesan@birdmarella.com
20 Michael D. Kimerer, mdk@kimerer.com
Rhonda Elaine Neff, rneff@kimerer.com
21
David S. Eisenberg, david@deisenbergplc.com
22 Joy Malby Bertrand, joyous@mailbag.com
23 John Jacob Kucera, john.kucera@usdoj.gov
Kevin M. Rapp, Kevin.Rapp@usdoj.com
24
Margaret Wu Perlmeter, Margaret.perlmeter@usdoj.gov
25 Reginald E. Jones, reginald.jones4@usdoj.gov
26 Peter Shawn Kozinets, Peter.Kozinets@usdoj.gov
Andrew C. Stone, andrew.stone@usdoj.gov
27
28
16
DEFENDANTS’ MOTION TO DISMISS INDICTMENT BASED ON SECTION 230 OF THE
COMMUNICATIONS DECENCY ACT OR ALTERNATIVELY, AS VOID FOR VAUGENESS