A US District Court judge has ruled that an Alabama man charged with money laundering and drug trafficking offenses can keep a web site that posted the names and photos of informants and DEA agents involved in his case. The man, Leon Carmichael, told the court that the web page, done in the style of a "WANTED" poster and which asked for information about the informants and DEA agents, was part of his defense effort.
Federal prosecutors had sought a protective order to remove the web site. They argued that it was an attempt to intimidate witnesses to scare them away from testifying at trial, a violation of federal law. They also argued that it might taint the jury pool and that it might scare DEA agents away from undercover work and discourage citizens from becoming informants.
But US District Court Judge Judge Myron H. Thompson wasn't buying. The government's position constituted impermissible "prior restraint" of Carmichael's First Amendment right to freedom of expression, he wrote. Despite prosecutor's assertions, Thompson wrote, the web site neither constituted a "true threat" no was it "incitement."
And if people are uncomfortable with being outed as narcs, well, that goes with the territory, Thompson noted. "It is true that the term 'informant' by which the www.carmichaelcase.com site refers to four government witnesses in this case generally carries a negative connotation... The First Amendment, however, does not prohibit name-calling. Indeed it seems likely in any big drug-conspiracy case like this that witnesses would be anxious and possibly afraid," Thompson wrote.
And what are those DEA guys afraid of, anyway? Thompson wondered. "There is insufficient evidence to conclude that the web site poses a serious and imminent risk to the safety of government agents or to their future work as undercover officers... [T]he DEA agents who testified all did so in person in open court as they have done in other cases. This fact alone calls into question the extent to which their names and faces must be jealously guarded to protect their safety," the court said.
Thompson also upheld the web site on Fifth and Sixth Amendment grounds, noting that defendants have the right to seek information to bolster their cases. He compared the web site to "time-tested investigative techniques" such as going door to door with a photograph, and found no essential difference.
Stephen Glassroth, a Montgomery defense attorney who represents Carmichael, told Lawyers Weekly USA the ruling provided "another tool to help us try to level the playing field" and that it was already paying off. He has already received phone calls with "potential impeachment information" against the informants, he said.
Other defense attorneys also hailed the ruling. "Often [informants] are life-long liars, and you would have no way of knowing this; they're not going to tell the government, noted New York criminal defense attorney Gerald Lefcourt told the weekly.