New Supreme Court Decision Could Affect Backpage Asset Seizures

WASHINGTON, D.C.—Last week, a group of libertarian organizations led by the Cato Institute filed a court brief in the case, protesting the government’s seizure of hundreds of millions of dollars in assets owned by the shuttered site’s owners, Michael Lacey and James Larkin.

The brief said that the asset seizures violated the United States Constitution on First Amendment grounds, because Backpage should be assumed to be engaged in protected free expression. But a U.S. Supreme Court decision handed down on Wednesday could end up directly affecting the Backpage seizures based on the Eighth Amendment to the Constitution. 

The Eighth Amendment is most often invoked in death penalty cases, due to its prohibition against “cruel and unusual punishments.” But the same amendment also bars the government from imposing “excessive fines.” 

In Wednesday's case, Timbs v. Indiana, the court’s liberal and conservative wings came together in a unanimous decision holding that the “excessive fines” prohibition should be included in the 14th Amendment’s guarantees of due process, to bar excessive property seizures by police and government agencies.

In the Timbs case, a man who had pled guilty to selling $225 worth of heroin to undercover cops sued the state of Indiana after police seized a $42,000 Land Rover that Timbs had purchased using money from his father’s life insurance. The police said that Timbs used the vehicle in the commission of his crimes, according to The New York Times

But the court said that the police had gone too far.

“The protection against excessive fines has been a constant shield throughout Anglo-American history,” wrote Justice Ruth Bader Ginsburg for the unanimous court. “Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies.”

While the impact of Wednesday’s decision on the Backpage case remained unclear just one day after the ruling came down, Ginsburg’s opinion echoed the view of a lawyer for Lacey, prominent free speech advocate Paul Cambria, who made the First Amendment argument in a November court hearing.

“There's no doubt, number one, that this is a First Amendment case," said Cambria at the court hearing. "These are publishing activities. We have had case after case of litigation, both state and federal, indicating that these are First Amendment activities."

In an interview last August, Larkin claimed that the case against Backpage was the  result of a political vendetta, stemming from investigative journalism by The Phoenix New Times, a newspaper founded by Lacey and Larkin in Arizona.

“Part of the reason this has really worked is because you have Cindy and John McCain involved and they see an opportunity to even a score," Larkin said in the interview. 

"We spent 40 years doing journalism, groundbreaking journalism, and they want to take all that away," Lacey added.

Photo by Kjetil Ree/Wikimedia Commons