Gag Me With An . . . Order? Massey Mine Case Starts With Broad Gag Order

December 19, 2014

By: Sara Kropf

The federal case against former Massey CEO Donald Blankenship has taken a rather unexpected turn—a sweeping gag and sealing order that effectively prevents anyone from following the case.

I was hoping to cover this case in some detail by analyzing the motions, orders and various parts of the docket over time. But the judge is not making that easy.

I say the “judge” is not making it easy because neither the government nor the defense asked for the order. It was entered sua sponte.

The good news is that news organizations are upset about the order and seeking to have it removed. Fourth Circuit precedent may be on their side.

The Gag And Sealing Order

First things first: here is a link to the order, before it was removed from public access on PACER.

Judge Irene Berger, the presiding judge, issued the order November 14, the day after the indictment against Blankenship was made public.

The order says that Mr. Blankenship and the case “have been the subject of publicity.” (Yes, that’s what happens when the CEO of a company is indicted.)

Based on that statement alone, without citation to anything specific, the Court says it wants to “take precautions” to ensure that the parties can choose a fair jury “whose verdict is based only upon evidence presented during trial.”

The court ordered the parties, counsel, witnesses and victims (plus the victims’ families) not to make

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.


Any and all motions, stipulations, discovery requests, responses, supplemental requests and responses, and other relevant documents shall be filed directly with the Clerk

And, as the kicker:

Access to all documents filed on CM/ECF in the above styled matter be restricted to case participants and court personnel.

Don’t worry, though, the judge threw us a bone. The Clerk is directed

to make the docket entries publicly available.

Woo hoo. As anyone knows, a docket entry doesn’t tell you very much.

The Media Is Not Happy

On December 10, several media sources filed a motion to intervene to challenge the gag order. There are some heavy hitters here, the Wall Street Journal, NPR and so forth.

[That media’s motion, not surprisingly, is available online. But not through PACER. If you click on the motion in PACER, you get the standard message: “This image is not available for viewing by non-court users.”]

The ACLU filed a brief in support of the media outlets as well.

There can be little question that the explosion at the Massey mine and the subsequent government investigations have been the subject of massive media coverage. The brief cites four governmental investigations into Massey’s conduct, and 23 separate instances of news reports and stories focused on Massey’s alleged victims and their families.

This begs the question of what, exactly, the court hopes its gag order will accomplish. Most jurors will have already been exposed to whatever the gag and sealing order might hide. It is hard to imagine anyone in West Virginia who does not know something about the case.

However, it’s always amazing to sit through jury selection in a high-profile case and realize how few people actually watch the news. Even fewer read the news. Most jurors under 30 seem to get their news from Jon Stewart.

The brief suggests that this is a fight over public perception of the case and, in a larger context, over public perception of the justice system. It points to the fact that

Blankenship himself has financed the production and distribution of a movie concerning [the Upper Big Branch mining tragedy.]

Preventing Massey’s victims and their families from speaking to the media may tip the scales even further from fairness. The brief contends that the order in Mr. Blankenship’s case is unconstitutional under the First Amendment and hints that it will render his trial unfair. It may also, according to the brief, undermine the trustworthiness of the entire judicial system.

Plus, aren’t there lesser remedies available than a complete sealing of the case and a gag order of the parties and victims?

Could They Win?

The court held a hearing on the motion to intervene on December 17. During the hearing, Mr. Blankenship’s lawyers said that they intended to move for a change of venue.

Regardless of the possible venue change, the media may carry the day here because of a recent case in the Fourth Circuit. (Hat tip: Allison Frankel.)

Basically, in a case before the Fourth Circuit, the Consumer Products Safety Commission (CPSC) wanted to publish a report in its public, searchable database about the pseudonymous “Company Doe.” The report indicated that Company Doe’s product killed an infant.

The company filed a lawsuit to stop the publication and successfully sought an order allowing it to litigate the case under seal and proceed under a pseudonym. The Fourth Circuit, however, ordered the case’s unsealing, saying that

the district court’s sealing order violate[d] the public’s right of access under the First Amendment and that the district court abused its discretion in allowing Company Doe to litigate pseudonymously.

I Hope the Media Wins

To issue a gag order so early in a case, long before there has been any indication that any party intends to use public statements to influence the public and the possible jurors, strikes me as premature.

This is an important case. It is one that should be followed closely by the media and by anyone interested in the justice system. To have every single order and motion in the case under seal is absurd.

After the December 17hearing, Judge Berger took the motion under advisement. Let’s hope her decision, at least, is made public when she issues it.

Ben Bradlee would not be pleased.

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