The public barely had time to digest the breaking news last week that former Massey Energy CEO Don Blankenship had been indicted on criminal charges before U.S. District Judge Irene Berger clamped down on press coverage and public access to information.
Berger issued a sweeping gag order prohibiting anyone associated with the case—directly or indirectly—from making any statements “of any nature, in any form,” or releasing any documents to the media or anyone else.
Berger’s order also stipulated that only case participants shall have access to filed documents. The public’s access to those documents will be limited to “docket entries,” which are little more than lists of filings.
The judge stated in her order that she’s trying to clamp down on some of the publicity about the case to protect the potential jury pool. “After careful consideration and in light of the prior publicity, the Court finds it necessary to take precautions to insure that the Government and the Defendant can seat jurors who can be fair and impartial and whose verdict is based only upon evidence presented during the trial.”
Berger is in a tough spot. She’s presiding over a high profile case. Blankenship faces four charges connected with the operation of the Upper Big Branch mine in Raleigh County where 29 miners died in a 2010 explosion.
The disaster, and Blankenship himself, have been the subject of intense public interest, and thus extensive press coverage. If the case comes to trial it will draw national attention. Still, West Virginia Press Association executive director Don Smith believes the judge overreached.
“We certainly understand Judge Berger’s position and her concerns about seating a jury, but locking down all the information, all the court records… that goes too far,” Smith told me on “Talkline” Tuesday.
In the landmark 1976 U.S. Supreme Court decision Nebraska Press Association v. Stuart, the court found a restrictive gag order in a sensational murder trial was unconstitutional. “Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment Rights,” wrote Chief Justice Warren Burger.
More practically speaking, the gag order in the Blankenship case won’t stop pre-trial coverage, but it may distort it, says the First Amendment Center’s Gene Policinski. “It’s going to take the most informed people out of the discussion,” Policinski told me. “You’re condemning the public to less informed, but not less voluminous coverage.”
Trials, and proceedings leading up to them, are public, with some limited exceptions. That’s guaranteed in the Sixth Amendment, and for good reason. The bright light of openness helps preserve and protect public confidence in the judicial system.
Irene Berger is an experienced and respected adjudicator on the federal bench. Her desire to conduct a fair and impartial proceeding in this case is unquestioned. However the judge should have the same level of respect for the press and the public’s ability—and their right—to follow the Blankenship case unfettered.