This week, the former CEO of Massey Energy, Don Blankenship, pleaded not guilty to federal charges that he violated mine safety rules and hindered federal safety enforcement in connection with the April 2010 explosion at Massey’s Upper Big Branch Mine, in which 29 miners died.
Despite the intense public interest in the case -- which implicates issues of corporate accountability, worker safety, and federal regulation (adding a little extra color, the New Yorker this week opined that "[c]artoon corporate villains don’t come more cartoonish than Don Blankenship, a former coal baron of West Virginia") -- the public's ability to learn about the case has been severely curtailed by a gag and sealing order entered by Judge Irene Burger of the U.S. District Court for the Southern District of West Virginia.
Under the order, remarkable in breadth,
neither the parties, 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, nor any court personnel shall make any statements of any nature, in any form, or release any documents to the media or any other entity regarding the facts or substance of this case.
So not only are the parties and their counsel restricted but so are victims and their family members –- none of whom is even before the court. Also muzzled are "potential witnesses" -- but how is a person to know, and how certain does a person have to be, that she is a “potential witness,” so as to fall under this order? In the face of such uncertainty, the chilling effect of the order is likely to be broad.
And the order goes on to cut off public access to documents filed in the case by directing that the documents “be restricted to the case participants and court personnel.”
The full order is here.
As reported by the Charleston Gazette, no party requested the order.
It should be noted that this district court is under the jurisdiction of the Fourth Circuit, which earlier this year issued a strong decision in Company Doe v. Public Citizen admonishing trial courts to preserve judicial transparency. The interests that supported transparency there –- where the court emphasized that “the right protects the public’s ability to oversee and monitor the workings of the Judicial Branch,” and that “public access to the courts promotes the institutional integrity of the Judicial Branch” –- are even stronger here, as this case not only involves issues of public safety and the working of the courts (as Company Doe did) but also a criminal defendant’s liberty.
A coalition of West Virginia media groups is preparing to fight the gag order. For the sake of free speech and the transparency of the judicial process, let's hope they succeed.