Big News Outlets Are Fighting A Gag Order To Access An Indicted Coal Baron’s Court Records

CREDIT: AP/Carolyn Kaster

Massey Energy CEO Don Blankenship.

Right now, the criminal indictment of former Massey Energy CEO Don Blankenship — charged with responsibility for the deaths of 29 coal miners in an April 2010 mine explosion — is not available to the public. The families of the explosion’s victims, and the parties to the lawsuit, are not allowed to speak to the press. Court personnel are banned from making any statements to the media about what’s going on with the case.

All of those restrictions were placed by U.S. District Judge Irene Berger, who issued the sweeping gag order shortly after Blankenship’s indictment. But five prominent news organizations are challenging Judge Berger’s decision in court, saying the gag order unreasonably prevents the news media from reporting on a case too important to be ignored.

“A reporter’s First Amendment right to publish is meaningless if it is prevented from gathering news in the first place,” the legal challenge, filed by The Wall Street Journal, The Associated Press, National Public Radio, The Charleston Gazette, and the Friends of Public Broadcasting, reads. “In this case, the court’s gag order prevents the news media intervenors and other members of the press from court records and those most knowledgeable about it, the participants and those affected by the underlying events.”

Blankenship’s criminal indictment earlier this month was a big deal. The explosion at the Upper Big Branch coal mine was the worst mining disaster in decades, killing miners over a mile away. Afterward, Blankenship was accused of willfully allowing and covering up safety violations in the name of profit. Blankenship denied this — he even released a 51-minute video this year portraying himself as a champion of miner health and safety, and claiming the disaster was due to a build-up of natural gas.

But the indictment (which was initially public, but is now sealed) charged otherwise. Blankenship, it said, personally knew that the Upper Big Branch (UBB) was committing “hundreds of safety-law violations every year and that he had the ability to prevent most of the violations … Yet he fostered and participated in an understanding that perpetuated UBB’s practice of routine safety violations, in order to produce more coal, avoid the costs of following safety laws, and make more money.”

“This indictment is momentous,” an editorial in the Charleston Gazette published shortly after the indictment read. “The U.S. attorney’s willingness to pursue this investigation shows that coal miners dying in an unsafe mine is not allowed to pass simply as a cost of doing business.”

Interestingly enough, Judge Berger’s decision to seal all court records and prevent those affected by the disaster from talking to the media was apparently because of the case’s importance to the news media, or “in light of prior publicity.” Because of this, Berger said the sweeping gag order was necessary to make sure jurors could remain “fair and impartial,” to make sure they would make their verdict “based only upon evidence presented during trial.”

The news outlets argue that Berger’s two-page order was unreasonable. It didn’t provide justification for the claim that fair and impartial jurors would be impossible to find with news outlets covering the case, nor did it explain if there were any other alternatives that could remedy Berger’s concern.

The lack of detailed explanation, paired with accusations that the gag represents an “invalid restraint” on protected free speech and defies public interest, is why the news outlets are intervening in the case. One point the news organizations made was that the order could “hinder a fair trial instead of enhancing it,” by forcing the media to rely on second-hand sources not barred by the gag order to get information about the case.

“[E]ven with the gag and sealing order in place, the press will continue to follow the investigation and prosecution,” the filing says.

The news outlets could have good chance, if not of overturning the gag order altogether, of at least getting it narrowed. As ThinkProgress’ Ian Millhiser noted last week, the most recent legal precedent on the issue states that these types of gag orders are not the easiest to legally justify. Among other things, the gag order must be “narrowly drawn” and represent “the least restrictive means available.”

“Berger may have been right to issue some kind of gag order in the Blankenship case,” Millhiser writes, “but it is far from clear that the order she actually handed down is acceptable.”