We have recently joined yet another amicus brief in a case of national importance – and national interest. The case is United States v. Blankenship. Donald Blankenship was the Chairman and CEO of the Massey Energy company, owners of the Upper Big Branch mine. He was charged with conspiracy to violate mine safety and health standards, and conspiracy to defraud the United States, among other things, in connection with the 2010 Upper Big Branch mine disaster.

The Associated Press, NPR, the Wall Street Journal, the Charleston Gazette, and Friends of West Virginia Public Broadcasting, Inc. intervened in the District Court case for the purpose of challenging a gag order which prevents just about any party to the case from speaking about the case and a sealing order which applies to any documents file in the case. The court justified the orders due to the intense pretrial publicity surrounding the case and said that they will remain in place until an adjudication of guilt or innocent. The district court denied the media interveners the relief they sought.

The interveners appealed to the United States Court of Appeals for the Fourth Circuit, which is where we have joined a brief drafted by the Reporters Committee for Freedom of the Press. That brief argues that courts have, for centuries, recognized a presumption of openness with regard to criminal trials. A court must make specific, on the record findings that a gag or sealing order is narrowly tailored to achieve a compelling interest. They must consider other alternatives before a gag or sealing order. This is a very high bar that rarely allows for broad gag or sealing orders.

Ordinary news coverage – even if it is pervasive, concentrated and, yes, adversarial to the defendant – does not justify a broad gag order or sealing order. It is only when this coverage threatens the ability to empanel an impartial jury must the court step in – and even then, a gag or sealing order is supposed to be a last result, utilized only after other alternatives with less First Amendment alternatives are considered and discarded, including: special questionnaires to screen prospective jurors; asking searching direct and open-ended questions to jurors in person (as a group and individually) about their level of exposure to pretrial publicity and whether they nonetheless could be fair; increasing the number of peremptory challenges available to defendants; seating a foreign jury while keeping the matter in the district; and transferring venue to another district.

None of these occurred in this case. The District Court made none of the required filings before entering its broad gag and sealing orders in this case. Any cited dangers from pretrial publicity were broad and generalized, not narrow and specific, as required; they were simply vague allegations that pretrial publicity might prove prejudicial. The court improperly rejected any of the alternatives described above as simply “not feasible” at this time. Even if the court had followed all necessary procedures and considered all possible alternatives, its order is still overbroad.

The court’s main concern was pretrial publicity, especially the type that might prevent the seating of an impartial jury. But, if that’s the case, these court documents could be released once the trail begins and the documents in question are discussed or presented in open court. Reporters and the public rely on the actual case documents to report on and understand the case. They need to be made available as soon as possible. Finally, the gag order is not only overbroad, but vague as well. A gag order that restricts any and all potential witnesses from speaking about the facts or substance of a criminal case is “an extreme example of a prior restraint upon freedom of speech and expression and one that cannot escape the proscriptions of the First Amendment.” Applying it to “those who may appear at some stage of the proceedings” offers no guidance at all.

As the brief notes: “To be clear, the importance of this Court’s resolution of the Petition before it extends beyond this case. It is vital that district courts be required to properly apply the correct legal standards when imposing any limitation on the rights of the press and the public to access court records and information in criminal cases.” Because the District Court did not do so in this case, we felt we needed to weigh in to overturn that decision and prevent other courts around the country from believing they can issue similar orders.