Media groups appeal gag and sealing orders in Blankenship mining case

Media organizations are fighting to overturn a gag order and sealing order entered in connection with the criminal trial of Donald Blankenship, former CEO of Massey Energy. The matter is pending in the U.S. Court of Appeals for the Fourth Circuit.

Media outlets including The Wall Street Journal, The Associated Press, National Public Radio, and the Charleston Gazette last week appealed the denial of their request to have the orders overturned. The Reporters Committee for Freedom of the Press, on behalf of 29 other media and free speech organizations, filed an amicus brief in support of the media petition.

Last November, Blankenship was charged with conspiracy to violate federal mine safety and health standards and securities fraud, among other things, stemming from the Upper Big Branch mine explosion in 2010, which killed 29 people.

Immediately following the indictment, U.S. District Court Judge Irene Berger issued a gag order preventing anyone connected with the case — the parties, attorneys, potential witnesses, family members of "actual and alleged victims" and others — from making “any statements of any nature, in any form, or release any documents to the media or any other entity regarding the facts or substance of this case.” The judge also ordered that access to all filings in the case would be restricted to case participants and court personnel.

A small coalition of media outlets, including The Wall Street Journal, The Associated Press, National Public Radio, and the Charleston Gazette, moved to intervene in the case and asked the judge to vacate the restrictive orders, which they argued were vague and overbroad. In January, the judge denied the motion to vacate the orders, finding that news coverage of the criminal proceedings was sufficiently likely to prejudice Blankenship’s right to a fair trial.

The judge did unseal some documents, but maintained the order to seal all future filings that have “information or argument regarding the substance of the case.”

The media intervenors now are asking the federal appellate court to step in, and direct the lower court to vacate or alter its orders.

In its brief, the Reporters Committee argued that the restrictive orders are unconstitutional, because, among other reasons, they are based on mere speculation that widespread coverage about the trial would prevent Blankenship from receiving a fair trial, rather than specific findings, as required by the First Amendment.

Although Judge Berger concluded that news coverage was sufficiently likely to make seating an impartial jury impossible, she did not cite a single article in the four years leading up to the indictment that was inflammatory or likely to cause prejudice.

The Reporters Committee also argued that the orders swept too broadly, effectively prohibiting anyone with personal knowledge of the mine explosion from talking to the media, even if the resulting stories would not be unfairly prejudicial to the defendant. The expansive gag and sealing orders particularly harmed members of the media who cannot cover the trial in person and rely on court documents and interviews with key figures to produce original reporting.

Alternative remedies, such as proper screening of potential jurors, would be capable of alleviating any prejudice to Blankenship, the Reporters Committee argued.

There is no indication when the Fourth Circuit will issue its ruling. The case is In re The Wall Street Journal.