Unanswered question in Blankenship seal ruling: Whom can judges gag?

March 9, 2015

The 4th U.S. Circuit Court of Appeals wasted no time in deciding that U.S. District Judge Irene Berger of Beckley, West Virginia, went too far when she issued a sweeping seal-and-gag order in the government’s criminal case against former Massey Energy CEO and chairman Don Blankenship. A three-judge panel heard oral arguments in a challenge to Berger’s order last Monday, less than two weeks after four media companies and a nonprofit petitioned the 4th Circuit to undo Berger’s restrictions. On Thursday, 4th Circuit Judges Roger Gregory, James Wynn and Andre Davis did just that in a short per curiam opinion.

Judge Berger, who had entered the seal-and-gag order on her own, rather than on a motion by the government or Blankenship, unsealed most of the case documents right after the 4th Circuit’s ruling. There’s still no public access to Blankenship’s motion to transfer the case, in which he has been indicted for conspiring to violate safety regulations in order to boost Massey’s profits and for deceiving regulators and investors about the company’s safety compliance at the Upper Big Branch mine in West Virginia. An explosion at the mine in 2010 killed 29 workers in one of the deadliest mining disasters in U.S. history. But the public can now read Blankenship’s motion to dismiss the indictment as a vindictive prosecution as well as his motion arguing that no federal trial judge in West Virginia can fairly preside over this case. (Or you can read a summary of the unsealed filings from The Charleston Gazette, one of the media outlets that petitioned for the case record to be made public, along with the Wall Street Journal, the Associated Press and National Public Radio.)

I’ve said before that Berger’s order – which purported to bar even family members of the victims of Blankenship’s alleged crimes from talking about the case – was outrageously overbroad, and I’m gratified that my employer, Reuters, joined an amicus brief urging the 4th Circuit to lift the seal and remove the gag. As the 4th Circuit said, the trial judge seems to have acted with a “sincere and forthright” intention of assuring Blankenship’s right to a fair trial, but her order “cannot be sustained.”

What we still don’t know, however, is how far a gag order can go or even what test a trial judge should use to answer that question. The U.S. Supreme Court has identified four factors for courts to consider when they are deciding whether to seal documents in a case, most notably in the 1986 case Press-Enterprise v. Superior Court of California. On gag orders, though, the high court has provided only bare-bones guidance, holding in the 1991 case Gentile v. State Bar of Nevada that lawyers may be restrained from speaking publicly about their cases (though the justices found the particulars of Nevada’s prohibition to be unconstitutionally vague). Precedent from the 4th Circuit, in the 1984 case In re Lacie Russell, suggests that judges are acting within their authority to bar potential trial witnesses from talking to reporters.

Judge Berger’s gag order went far, far beyond lawyers and prospective witnesses. Family members of Massey employees killed in the 2010 explosion, for instance, said they feared they would be in violation of the order if they testified before West Virginia legislators considering tort reform proposals. Former Massey shareholders also arguably fell under Berger’s gag order because they are “victims” of Blankenship’s alleged securities fraud. In a 1976 case called Nebraska Press Association v. Stuart, Chief Justice Warren Burger wrote that “a whole community cannot be restrained from discussing a subject intimately affecting life within it.” The lawyer who argued at the 4th Circuit for the media companies challenging Berger’s order, David Schulz of Levine Sullivan Koch & Schulz, asked the 4th Circuit to define just who can be muzzled.

The appeals court declined to offer guidance beyond citing the Nebraska and Russell precedent, as well as a 4th Circuit case from 1999, In re Morrissey, which held that the First Amendment doesn’t preclude restrictions on what lawyers can say to the media.

Schulz told me Monday that the 4th Circuit’s quick action to dissolve the gag order “itself sends a message.” The simple per curiam decision was the fastest way for the appeals court to undo the First Amendment damage from Judge Berger’s “incredibly broad and incredibly vague order,” Schulz said.

The 4th Circuit actually floated the idea of an unelaborated per curiam lift of the seal-and-gag order during argument by Blankenship defense counsel William Taylor of Zuckerman Spaeder. Blankenship’s strategy is to get the criminal case out of West Virginia, and though his response to the media companies’ brief half-heartedly backed Judge Berger’s restrictive order, Taylor’s primary argument to the 4th Circuit was that the court should wait until Berger decides whether to transfer Blankenship’s case. The panel asked whether an opinion simply lifting the seal-and-gag order was Taylor’s preference. “The less you say about transfer issues the better,” the defense lawyer answered. (Taylor did not return my phone call.)

The Justice Department took no position in briefing and arguments at the 4th Circuit on the seal-and-gag order. Prosecutor Steven Ruby of the West Virginia U.S. attorney’s office said he could try the case with or without the restrictions.

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