Appeals court throws out sweeping gag order in former Massey Energy CEO's criminal case

A federal appeals court on Thursday invalidated a sweeping gag order in the case of a former coal company executive accused of violating safety standards at a West Virginia mine where an explosion killed 29 men.

U.S. District Judge Irene Berger's order prohibited just about anyone, including victims' relatives, from speaking publicly about former Massey Energy CEO Don Blankenship's case. The judge also kept most court filings secret.

Berger said the order was needed to protect Blankenship's right to a fair trial in an emotionally charged case that has received intensive news coverage. Five media organizations challenged the order, arguing that it violated the First Amendment by excessively restricting public access to judicial proceedings.

The three-judge panel, which heard arguments Tuesday in Richmond, said in its order that public access cannot be denied without proof of a "substantial probability" that pretrial publicity jeopardizes the defendant's right to a fair trial.

"Having carefully reviewed the record, although we commend the district court's sincere and forthright proactive effort to ensure to the maximum extent possible that Blankenship's right to a fair trial before an impartial jury will be protected, we are constrained to conclude that the order entered here cannot be sustained," the panel said in the seven-page order.

The gag order was challenged by The Associated Press, The Charleston Gazette, The Wall Street Journal, National Public Radio and the Friends of West Virginia Public Broadcasting.

"The court of appeals has recognized the importance of public access to the records in a criminal trial and the First Amendment right of witnesses and interested parties to comment on charges made in federal proceedings," the media organizations' attorney, David A. Schulz, said in a telephone interview. "They struck down the order completely because it was clearly and plainly overbroad and not supported by any showing of substantial need."

William W. Taylor III, an attorney for Blankenship, declined to comment on the order. He told the appeals court at Tuesday's hearing that the gag order would be unnecessary if a defense motion to move the trial out of Southern West Virginia is granted, but that it should remain in place until then.

Federal prosecutors did not take a position on the gag order, saying Blankenship can receive a fair trial with or without the restrictions.

Blankenship, who was the head of Massey when the Upper Big Branch mine exploded in 2010, is scheduled for trial April 20.