## Facts

- Leon Carmichael, Sr. was federally charged with drug-conspiracy and money-laundering offenses after informants implicated him in marijuana distribution leading to seizure of several hundred pounds of marijuana.
- After his arrest, Carmichael created a website about his case, stating it was intended to gather information for his defense.
- The website displayed the word “Wanted,” identified alleged informants and agents by name, and included photographs of informants and a federal agent.
- The site provided contact information for Carmichael’s attorneys and included a disclaimer denying any intent to intimidate or harass.
- The government moved for a protective order requiring removal or substantial restriction of the website, asserting the site threatened or harassed witnesses and agents and risked intimidation and chilled cooperation.
- Carmichael opposed the motion, arguing the website was protected speech and a tool to investigate and prepare his defense.

## Issues

1. Whether the court had statutory or inherent authority to restrict or shut down a criminal defendant’s website concerning a pending prosecution.
2. Whether ordering removal or substantial alteration of the website would be an unconstitutional prior restraint under the First Amendment.
3. Whether the asserted risks from the website justified restricting the defendant’s Fifth Amendment due-process and Sixth Amendment defense-preparation rights.

## Decision

- The court held it had authority, by federal statute and inherent power, to restrict or shut down a website in appropriate circumstances.
- The court found the website constituted speech protected by the First Amendment, even if not at the Amendment’s core.
- The requested protective order was a prior restraint on protected speech, and the government did not carry the heavy burden required to justify that relief.
- The court concluded the asserted harm did not warrant restricting Carmichael’s Fifth and Sixth Amendment right to investigate his case by using the website to gather evidence.
- The court denied the government’s renewed motion for a protective order.

## Legal Principles

- Federal courts may issue protective orders affecting litigants’ conduct under statutory authority and inherent powers to protect the judicial process and participants.
- A court-ordered shutdown or substantial restriction of ongoing speech is a prior restraint and is presumptively unconstitutional; the government bears a heavy burden to show necessity to prevent serious harm and to show that less restrictive means are inadequate.
- Speech about pending criminal cases, including efforts to solicit information from the public, is generally protected absent a showing that it falls outside First Amendment protection (such as true threats).
- Restrictions that impair a defendant’s ability to investigate and prepare a defense can implicate Fifth Amendment due process and Sixth Amendment trial rights and require strong justification.

## Conclusion

The court acknowledged authority to restrain a defendant’s online conduct in proper cases but refused to order removal or major alteration of Carmichael’s “Wanted”-style website because the government failed to justify a prior restraint on protected speech and failed to show harm sufficient to override the defendant’s constitutional interests in investigating and preparing his defense.


United States v. Carmichael, 326 F. Supp. 2d 1267 (M.D. Ala. 2004)