RICHMOND, Va. (AP) — A gag order in the criminal case of the West Virginia coal mine explosion that killed 29 men violates the First Amendment by barring virtually anyone from discussing it publicly, a lawyer for media organizations said Monday.
David Schulz told a three-judge panel of the U.S. 4th Circuit Court of Appeals that some victims' relatives believe the sweeping gag order also prohibits them from testifying before lawmakers and regulators.
U.S. District Judge Irene Berger's gag order was imposed in January when she said it was needed to protect former Massey Energy CEO Don Blankenship's right to a fair trial.
Blankenship was the head of the company when the Upper Big Branch Mine exploded in 2010. He is charged with conspiring to violate safety and health standards.
"The public has a right and a need to know that justice is being done fairly," Schulz said. The panel did not indicate when it would rule.
Along with barring people from talking, the judge strictly limited public disclosure of documents filed in the case. Among the documents that remain sealed is Blankenship's motion to move the case out of the Southern District of West Virginia.
Blankenship's lawyer, William W. Taylor III, told the court that the gag order will become unnecessary if the motion to move the trial is granted. Until then, he said, Blankenship supports keeping the order in place even though he didn't ask for it.
"A district judge has to do what is within her power to ensure a fair trial," Taylor said.
Appeals court Judge Andre Davis said the gag order "has the purpose of taping up people's mouths about something they've been talking about for years." And publicity, he said, does not automatically result in prejudice against a defendant.
Assistant U.S. Attorney Steven Ruby said prosecutors are not taking a positon on the gag order. He said they believe a fair jury can be selected with or without the restrictions.
Schulz said the judge needs to demonstrate "a substantial probability of harm" to justify the gag order, but has failed to do so. He said the public's right to know what the courts are doing is on equal footing with a defendant's right to a fair trial.
"Public access is critical to public confidence in the courts," Schulz said. "We don't live in a system where we have secret trials."
The gag order is being challenged by The Associated Press, The Charleston Gazette, The Wall Street Journal, National Public Radio and the Friends of West Virginia Public Broadcasting.