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An Alabama judge has declined to shut down a defendant’s Web site, entitled “Wanted” and containing the names and pictures of people it alleges are “informants” involved in an upcoming drug distribution case. The site�which also contains the names of U.S. Drug Enforcement Administration agents�requests background information about agents and witnesses who will testify at the scheduled September trial of the defendant. Weighing the interests of public safety against the defendant’s right to mount a defense, U.S. District Judge Myron Thompson recently denied a motion for a protective order, sought by prosecutors. Thompson ruled that the site does not pose a threat warranting its shutdown. U.S. v. Carmichael, No. 2:03CR259-T (M.D. Ala.). Leon Carmichael, a Montgomery, Ala., businessman, faces charges of alleged conspiracy to possess marijuana with the intent to distribute and conspiracy to commit money laundering after he was implicated in an alleged scheme to distribute marijuana by two individuals he later listed on the site who will testify at his trial. A lack of physical evidence linking Carmichael to the crime makes the credibility of the witnesses critical, asserted his attorney, Steve Glassroth, of The Glassroth Law Firm in Montgomery, Ala. The information sought by Carmichael’s Web site at www.carmichaelcase.com, launched in December, may be used to build the defense’s case, Glassroth said. The Web site has the word “Wanted” at the top, and identifies the witnesses as “informants.” It also features a disclaimer, saying the Web site’s intent is to seek information, and “is definitely not an attempt to intimidate or harass.” “This was the best way of seeking information from the community . . . that we can use at trial,” Glassroth said. “It’s a way to equalize the imbalance of resources the government has brought against the citizen accused.” The witnesses listed on the Web site testified at hearings that they were concerned about their safety. However, Glassroth argued that the Web site did not pose a threat, and defended the use of the “Wanted” title as a way of catching peoples’ eye. He added that the word “informants” is a “term of art” commonly used in many judicial opinions. The U.S. Attorney’s Office for the Middle District of Alabama, which is prosecuting the case, has been trying to get the court to shut down the site since its first motion for a protective order in February. The motion sought to bar Carmichael from posting photographs or addresses from any trial participants. The motion was denied by Magistrate Judge Delores Boyd, who ruled that the prosecution did not supply sufficient evidence of harassment from the Web site. After Thompson denied its second motion, a spokesman for the U.S. attorney’s office said it would not answer any questions regarding the case, but released a statement saying it “respect[s] the authority of the court to rule on the matter” and will now focus on preparing for trial. Thompson ultimately said the “discomfort” felt by some individuals did not justify a protective order, but noted “a few differences in Carmichael’s site could have changed the court’s calculus.” A judge’s dilemma Ronald Rotunda, a professor at George Mason University School of Law in Arlington, Va., said courts have had difficulty balancing the interests of public safety and the right to a defense, especially because it is impossible to place a value on them. “It’s like mixing apples with electricity,” he said. Thompson explained his no-win situation: “If the court permits the site to remain up and a witness or agent is harmed, the court will be blamed for predicting inaccurately. However, if the court restricts or prohibits Carmichael’s site, few will even be able to judge whether the court predicted accurately because the site will no longer be available.” Maria T. Vullo of New York’s Paul, Weiss, Rifkind, Wharton & Garrison was the lead plaintiff’s counsel in Planned Parenthood of the Columbia/Williamette Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002), which successfully enjoined a Web site and posters featuring the names and addresses of doctors who provided abortion services, and identified hundreds of other abortion supporters. Though the material did not specifically direct harm to the individuals they listed, the court ruled it constituted “true threats,” based on the recent history of violence against abortion doctors stemming from similar publications. Vullo agreed with Thompson’s distinction between the context of Planned Parenthood and Carmichael. Vullo said the abortion doctors she represented testified to specific threats and actions.

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