Fourth Circuit invalidates gag order and sealing order in Blankenship criminal trial

A federal appeals court today invalidated a gag order and sealing order that had been entered in the criminal case against Donald Blankenship, former CEO of Massey Energy Co., who faces charges stemming from the Upper Big Branch mine explosion in 2010 that killed 29 people.

The ruling is a victory for the media, which had been unable to access many court filings in the case and had been unable to discuss the substance of the charges with lawyers, parties, victims, victims’ family members, and others, who were subject to a broad gag order.

The Reporters Committee for Freedom of the Press, and a coalition of 29 media organizations, submitted a friend-of-the-court brief to the Fourth Circuit in support of the petition to vacate the orders, which had been filed by the Associated Press, NPR, The Wall Street Journal, the Charleston Gazette, and Friends of West Virginia Public Broadcasting.

The U.S. Court of Appeals for the Fourth Circuit issued its ruling a short, non-precedential order without much analysis of the First Amendment issues involved. The Court stated: “although we commend the district court’s sincere and forthright proactive effort to ensure to the maximum extent possible that Blankenship’s right to a fair trial before an impartial jury will be protected, we are constrained to conclude that the order here cannot be sustained.”

The Fourth Circuit did not provide instructions to the district court about whether a more limited gag order or less comprehensive sealing order would be constitutional.

The appeals court held that the media petitioners had the right to challenge the orders “because their right under the First Amendment to gather news . . . and to receive speech from willing speakers . . . has been directly impaired by the district court’s order.”

Blankenship faces charges of conspiracy to violate federal mine safety and health standards and securities fraud, among others.

Last November, the presiding district court judge entered a broad gag order and sealing order in an effort to prevent pretrial publicity that would prejudice Blankenship’s right to a fair trial. In January, when challenged by the media, the district court unsealed a few documents, but otherwise left its orders largely intact.