Gag Order in Blankenship Case Under Fire

It's a remarkable gag order.

And reporters and news organizations in West Virginia are circling the wagons, looking to overturn it.

The criminal indictment of former Massey Energy CEO Don Blankenship for his role in the April 2010 Upper Big Branch explosion has been the top story in West Virginia since it was filed on November 13.

Cecil Roberts and Ellen Smith on Blankenship IndictmentCecil Roberts and Ellen Smith on Blankenship Indictment MetroNews Talkline November 17, 2014 see story at ...

But it is Judge Irene Berger's gag order that is drawing fire from the West Virginia press.

West Virginia Press Association executive director Don Smith told MetroNews Talkline that he and other news organizations are looking closely at possible legal avenues to challenge it.

The gag order prohibits the parties and their lawyers from talking with reporters.

But it also prohibits "actual and alleged victims, investigators, family members of actual and alleged victims" from making "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."

Judge Berger also put the documents filed in the case, including the indictment, under seal, available only to the lawyers in the case.

The Charleston Gazette's Ken Ward first reported on the gag order.

Ward reported that U.S. Attorney Booth Goodwin's office even "removed a news release about the indictment from its website, but the Gazette has posted that release online."

"Blankenship's blog, which he uses to criticize federal regulators and labor unions and to promote his theories about mine safety and what caused the Upper Big Branch Mine Disaster, remains online," Ward reported.

University California Irvine Law Professor Erwin Chemerinsky has written on gag orders, including a seminal 1997 law review article titled Lawyers Have Free Speech Rights Too: Why Gag Orders on Trial Participants Are Almost Always Unconstitutional.

"The secrecy of the documents clearly violates the First Amendment," Chemerinsky told Corporate Crime Reporter when asked about Judge Berger's gag order. "The law is unclear on the constitutionality of the gag order on lawyers and parties. But the judge does not have authority over those who are not parties, such as family members of victims. That is clearly unconstitutional. The judge's order goes much further than the Constitution allows."

Katie Townsend, the litigation director at the Reporter's Committee for Freedom of the Press, called Judge Berger's order "egregious."

"In addition to a plainly overbroad gag order that would seem to prevent family members of individuals killed in the Upper Big Branch Mine explosion from speaking publicly about their loved ones' deaths, the district court has ordered that the entire docket in this case be kept under seal," Townsend said. "The press and the public have a right to access the court's records and to observe Mr. Blankenship's criminal proceedings. It is antithetical to the First Amendment for basic information about this case to be kept from the public."

The gag order hasn't stopped reporters and others from airing their views of the Blankenship case.

(This father of a UBB miner who died in the April 2010 explosion refused to abide by the gag order.)

United Mine Workers President Cecil Roberts went on MetrosNews' statewide radio Talkline show yesterday and said point blank that Blankenship belongs in jail.

The UMW released its report on the disaster in October 2011. The report was titled simply -- Industrial Homicide: Report on the Upper Big Branch Mine Disaster.

"Ninety-five percent of the CEOs in this country want to do the right thing," Roberts said. "But we have laws in the country for the CEOs who have decided they do not want to do the right thing. Don fell into the category of the five percent."

"Don's attitude happens to be that he knows more than everybody else," Roberts said. "He knows how to run a coal mine better than anybody else -- now leave me alone. And that kind of attitude, particularly in a coal industry where people are doing extremely dangerous work, leads to what we saw in Upper Big Branch."

Talkline host Hoppy Kercheval asked Roberts -- do you believe he belongs in jail?

"I've said that Hoppy," Roberts responded. "I wouldn't say it if I didn't believe it. Why is it in our society that people who violate laws outside of the workplace are charged with crimes, but if they violate laws inside the workplace -- well, you are not supposed to do anything to a CEO just because a mine blew up?"

Ellen Smith, publisher of the Mine Safety and Health News, told Kercheval that "these managers knew that by not focusing on ventilation or rock dusting, they clearly knew what they were doing was wrong and illegal."

Smith quoted a February 2008 memo cited in the indictment in which Blankenship says -- "We'll worry about ventilation or other issues at an appropriate time. Now is not the time."

"If they were ignoring a known ventilation problem, clearly they were breaking the law," Smith said.

Kercheval said that if he were defending Blankenship in court, he would argue -- "Okay, so he's a brutish guy, he's heavy handed, he's under pressure to produce coal and he probably shouldn't have done some of these things and pushed his people so hard, but there is a difference between being that kind of boss and being responsible for an explosion that killed 29 miners."

Smith said that she gets tired of people talking about "how dangerous underground coal mining is."

"In the same year when UBB was getting 47 or 48 withdraw orders, the Deer Creek mine had none," Smith said. "And they produced about the same amount of coal. These were both gassy mines. In that year, when the UBB mine had almost 800 citations, the Deer Creek mine has something like 55 -- just the comparison of a mine that can do it right and a mine that does it so wrong. And to say that you can't mine by the rules and the law and make money is simply not true. And not only can you make money, but you will not kill 29 miners while you are doing it."

Blankenship is being represented by William W. Taylor III, a partner at the law firm of Zuckerman Spaeder in Washington, D.C.

Taylor said that Blankenship is innocent and will fight the charges in the indictment.

"His outspoken criticism of powerful bureaucrats has earned this indictment," Taylor said. "He will not yield to their effort to silence him."

Blankenship is scheduled to appear in federal court in Beckley, West Virginia on Thursday at 1 pm for his arraignment.