The Woodhull Freedom Foundation, joined by the Foundation for Individual Rights and Expression (FIRE), the Reason Foundation, and the Electronic Frontier Foundation, has filed a joint amicus brief with the U.S. Court of Appeals for the Ninth Circuit in support of Michael Lacey, Scott Spear, and John “Jed” Brunst, the former executives of Backpage.com, who are appealing their criminal convictions.

The case, U.S. v. Lacey, Spear, and Brunst, centers on the federal government’s claim that Backpage executives facilitated prostitution through their online classified advertising platform. Prosecutors argued that by permitting adult-oriented ads, even without direct knowledge or involvement in any specific illegal acts, the defendants were complicit in criminal activity.

In their amicus (“friend of the court”) brief, the coalition of civil liberties and free expression organizations argues that the trial court ignored essential First Amendment protections and that the convictions set a dangerous precedent for online publishers across the U.S.

“The government argued that by allowing adult-oriented ads, the defendants were complicit in illegal activity by third-party advertisers,” the Woodhull Freedom Foundation stated. “We argue that holding publishers criminally liable for third-party content without proof of specific intent sets a dangerous precedent and runs contrary to established free speech protections.”

The brief sharply criticizes the district court’s handling of the case, asserting that it:

• Allowed the government to proceed without proving specific criminal intent by the defendants;
• Failed to instruct the jury on the First Amendment implications of the charges;
• Excluded relevant prior rulings affirming Backpage’s constitutional protections, evidence the defense intended to use to establish good-faith compliance with the law.

The organizations warn that the outcome of this case could have sweeping consequences beyond the adult industry, potentially affecting all platforms that host user-generated content. The fear is that without clear legal boundaries, publishers may resort to over-censorship to avoid legal exposure, leading to the suppression of lawful sexual expression and other constitutionally protected content.

“This case represents the culmination of a years-long campaign to censor online classified adult advertising,” the brief states. “The court’s misapplications of the law not only resulted in improper convictions of Appellants, but if allowed to stand, would gravely threaten online publishers and free speech rights.”

The case is widely viewed as a precursor to the 2018 passage of FOSTA/SESTA, a federal law that amended Section 230 of the Communications Decency Act to carve out liability protections for platforms accused of facilitating sex trafficking.

Critics argue that the law has led to widespread online censorship and harmed sex workers by pushing content underground.

Woodhull and its co-filers argue that the First Amendment remains a vital safeguard, especially in cases where speech about sexuality is involved, and should not be weakened by broad criminal liability for content posted by third parties.

The Ninth Circuit has not yet announced a timeline for hearing the appeal.