Last week, the former CEO of an energy company that oversaw a mining explosion in West Virginia that killed 29 miners in 2010 was indicted on four federal charges related to an FBI investigation into that explosion. The charges against Don Blankenship, the former chief executive of Massey Energy, include “[c]onspiracy to violate mandatory federal mine safety and health standards,” and “[c]onspiracy to impede federal mine safety officials.” If convicted, Blankenship faces a maximum sentence of 31 years in prison.
One group that will not have an opportunity to speak publicly about Blankenship’s actions, however, are his alleged victims. Shortly after the indictment was announced, Judge Irene Berger issued a sweeping gag order prohibiting anyone involved with the case, potentially involved with the case, or even many people who are involved with someone potentially involved with the case, from speaking to the media. The gag order extends to the parties, plus “their counsel, other representatives or members of their staff, potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the Defendant.”
The order also prohibits court personnel from “mak[ing] any statements of any nature, in any form, or releas[ing] any documents to the media or any other entity regarding the facts or substance of this case.” When ThinkProgress attempted to retrieve documents relating to the case from PACER, a public database of documents relating to federal court cases, we were informed that the documents were “not available for viewing by non-court users.”
There are few precedents for a gag order this broad, although there is at least one case involving a similar gag order issued by the judge presiding over a criminal prosecution of actual Nazis. In re Russell, a 1984 case handed down by the federal appeals court with jurisdiction over West Virginia, involved the shooting deaths of five people, allegedly at the hands of members of the Ku Klux Klan and the Nazi Party. In light of the substantial amount of media attention generated by this case, the trial judge hearing the case handed down a gag order prohibiting “[a]ny person who is a potential witness in this case” from speaking about the case “if such statement is intended for dissemination by means of public communication.”
The gag order in Russell was somewhat narrower than the one in the Blankenship case. It did not apply to “family members of actual and alleged victims,” for example. Nevertheless, the court’s reasoning in Russell, which upheld the gag order in that case, is useful because it lays out why such an order could be considered acceptable in a nation governed by the First Amendment. Quoting a 1966 Supreme Court case, Russell explains that “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences.” According to this 1966 opinion, “where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial” judges “must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.” Among other things, it will be hard to assemble an impartial jury if potential jury members are bombarded with news stories quoting the alleged victims of a particular defendant.
Nazis, Klansmen, and Don Blankenship are all entitled to a fair trial before they are convicted of a crime. So, while the First Amendment’s free speech protections are strong, it is reasonable to expect them to yield somewhat when an equally powerful constitutional right is at stake.
What’s less clear is whether they must yield as far as Judge Berger’s gag order would require them to yield. In what is likely the most recent federal appeals court case involving a gag order like the one Judge Berger handed down, the United States Court of Appeals for the Fifth Circuit explained in 2012 that “[i]n general, an order that restricts trial participants’ communications with the press” must survive a very high level of legal scrutiny. Among other things, “[t]he government must also establish that the order has been narrowly drawn and is the least restrictive means available.”
Though Fifth Circuit opinions do not control in West Virginia, there is nothing narrow about Judge Berger’s order. And the Russell case is a very old precedent that may prove much less persuasive to the Supreme Court than more recent cases — at least, that is, if someone brings a challenge to Berger’s gag order that reaches the Supreme Court. Berger may have been right to issue some kind of gag order in the Blankenship case, but it is far from clear that the order she actually handed down is acceptable.