Free Speech Wins: Overbroad Massey Mine Gag Order Lifted

March 18, 2015


By: Sara Kropf

I have been writing about the stupendously overbroad gag order imposed sua sponte by the judge in the criminal trial of Donald Blankenship, former CEO of Massey Mine. Judge Irene Berger imposed it, several media organizations intervened to challenge it, she decided to keep it mostly in place, they petitioned for mandamus to the Fourth Circuit.

The Fourth Circuit agreed to hear the case on an expedited basis. It heard argument on March 2. Three days later, the decision was in—petition granted.

Translation: free speech wins.

The court, unfortunately, did not offer much by way of analysis in its 5-page per curiam decision. It recited the general rule that the public has a “qualified right” to access to criminal trials, including pretrial findings.

The court then cited the settled two-part test to decide when the public’s right of access may be properly denied to protect an accused’s right to a fair trial. Under Press Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), a court must make “specific findings” that

(1) there “is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent,” and

(2) “reasonable alternatives to closure cannot adequately protect the defendant’s fair trial right.”

The court was careful to “commend the district court’s sincere and forthright proactive effort to ensure” Mr. Blankenship’s fair trial, but then concluded that the “order entered here cannot be sustained.”

The entire amended gag order is vacated.

Based on the court’s opinion, it’s impossible to know why it ruled as it did. There’s strong precedent in the Fourth Circuit protecting a public’s right of access to trials, but the court did not cite that case. The media organizations had offered credible “reasonable alternatives” to the near-complete sealing of the pretrial docket, but the court did not evaluate them.

It will be interesting to see how this change plays out in the public arena. Certainly, Mr. Blankenship has a PR team ready to offer his side of the story in one way or another. The government no doubt will communicate its view of Mr. Blankenship’s supposed conduct through its filings.

At a minimum, at least we’ll all know what is going on in the case. That’s the whole point of the First Amendment and public trials, after all. It’s just too bad the district court forgot that along the way.

Bravo to the Fourth Circuit for getting this one right.

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