Media Law Column

Court overturns sealing and gag orders
after media organizations file amicus brief in Blankenship case

Prince Lobel Tye LLP

A national media and First Amendment lawyer, offering counseling and litigation services, as well as contributing to the NENPA Media Law Hotline

POSTED March 10, 2015

Acceding to the urging of NENPA, NESNE, and dozens of other media entities, the Fourth Circuit Court of Appeals has overturned broad sealing and gag orders that had been entered in connection with the criminal trial of the former CEO of one of the nation’s largest coal producers.

Donald Blankenship, 64, the former CEO of Massey Energy, was indicted by a federal grand jury in November 2014 for conspiracy to violate mandatory federal mine safety and health standards in connection with a 2009 West Virginia mining disaster that resulted in the deaths of 29 workers.

On January 7, 2015, the United States District Court for the Southern District of West Virginia entered an order forbidding the release to the media of court documents and also banning anyone connected with the case — the parties, their lawyers, witnesses, and victims — from media interviews. The judge’s expressed reason was that such publicity would jeopardize Blankenship’s right to a fair trial.

In response, a coalition of news organizations, including the Wall Street Journal and National Public Radio, moved to intervene to vacate the gag-and-seal order. When the judge declined to do so, they took their argument to the Fourth Circuit Court of Appeals. There they received the support of a friend-of-the-court brief filed by the Reporters Committee for Freedom of the Press joined by 29 other media organizations, including the New England Newspaper and Press Association (NENPA) and the New England Society of Newspaper Editors (NESNE). The Fourth Circuit agreed to hear the matter on an expedited basis and ultimately overturned the district court’s order on March 5, 2015.

“Petitioners meet the constitutional requirements for standing 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,” the Fourth Circuit’s order says. It went on to observe that the public has a qualified right of access to criminal trials, pretrial proceedings, and documents submitted as part of trial proceedings.

“Where the right of the accused to a fair trial is at stake, the public will not be denied access absent ‘specific findings…demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.” It quoted from the U.S. Supreme Court’s landmark decisions in Richmond Newspapers v. Virginia (1980) and Press-Enterprise Co. v. Supreme Court (1986).

The amicus brief filed by the media organizations argued that the sealing orders imposed “unconstitutional restrictions on the ability of all reporters and news organizations” and that the court’s primary reason for imposing the order – the inability to seat an impartial jury – is based on mere speculation rather than concrete, specific findings as required by the First Amendment.

Further, many newspapers outside of West Virginia and at smaller media outlets, the brief stated, do not have budgets that allow for travel to cover the trial. As a result, reporters depend on court documents and interviews to gather accurate, valuable information to use in their reporting.

“If all court filings that ‘contain information or argument regarding the facts of substance of the case’ are kept under seal, and if reporters may not speak with trial participants, nor anyone who may potentially be called as a witness as trial, the press, and accordingly, the public, will be deprived of the most reliable sources of information...” the brief argued.


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