Third time’s a charm? Let’s hope not. More than five and a half years after journalist and Backpage co-founder Michael Lacey was arrested, federal prosecutors have indicated that they will try him for a third time on the same charges.
It’s a frightening reminder of how far authorities will go to get their way—and to warn tech companies and publishers against platforming speech the government doesn’t like.
When you zoom out a bit, it’s clear Lacey’s case could have implications for anyone who posts or consumes content online.
Doesn’t the Constitution bar being tried twice on the same criminal charges? Generally, yes—in cases involving an acquittal or conviction, that is. But Lacey’s two previous trials resulted in mistrials, meaning the government can take another shot if it likes. And in a motion filed yesterday, prosecutors announced that indeed they would like a do over, again.
The first trial, back in 2021, was declared a mistrial after prosecutors and their witnesses couldn’t stop suggesting that Lacey and his co-defendants were charged with child sex trafficking. They were not, and efforts to suggest as much could have seriously prejudiced a jury.
In actuality, Lacey, his longtime (and now deceased) publishing partner James Larkin, and several other former Backpage staffers and executives were charged with violating the federal Travel Act by facilitating prostitution. They were also accused of conspiracy to facilitate prostitution and money laundering in service of this.
The second trial, held last fall, saw a jury totally acquit two of the defendants while two others—Scott Spear and John “Jed” Brunst—were acquitted on multiple charges and found guilty on multiple charges.
Lacey’s outcome was also mixed but with far fewer guilty or not guilty verdicts. He was ultimately found guilty on just one count and not guilty on just one count; the jury was hung on the remaining 84 counts. So, federal judge Diane Humetewa declared a mistrial with respect to these 84 counts, allowing (but not requiring) the government to try again.
Hellbound and Down 