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Don Blankenship, the former CEO and chairman of Massey Energy, is accused of conspiring to violate various federal laws and regulations in connection with a fatal explosion in 2010 at the company’s Upper Big Branch-South mine.
It’s unquestionably a big story, but the reporters covering it face a challenge. Last week, in response to requests from both local and national news organizations, the federal judge presiding over Blankenship’s criminal trial refused to lift a gag and sealing order that (1) restricts access to most court records filed in the case, and (2) prohibits trial participants, including the attorneys and parties, from making statements or releasing information about it.
US District Judge Irene Berger did modify her initial order: The judge made public Blankenship’s indictment and other orders in the case, which she had previously sealed. But otherwise, she affirmed her decision to gag the trial participants and to restrict access to records containing “information or argument” related to the “facts and substance” of the case. Berger said the restrictions are necessary to protect Blankenship’s fair trial rights.
News coverage of the judge’s decision has been pretty good, but I thought it might be helpful to add some broader analysis of when it’s proper for a judge to gag people or to restrict access to court records. I hope these notes will add to the coverage so far, and help any journalists facing similar restrictions. (These are the general principles, so there may be slight variations from one jurisdiction to the next.)
— Don’t try to rely on FOI statutes. We use those to obtain executive branch records, but we use case law to obtain judicial branch records. There’s a First Amendment right of access to court proceedings and a common law right of access to court records. Neither one is absolute.
— For criminal proceedings, the US Supreme Court established a right of access in the 1980 case Richmond Newspapers v. Virginia. Since then, the justices have expanded that right to apply to sensitive testimony (Globe Newspaper v. Superior Court), jury selection (Press Enterprise I), and pretrial hearings (Press Enterprise II and Waller v. Georgia).
But, again, the right is not absolute. The court held in Richmond that before closing a proceeding, a judge must make findings to explain why closure is necessary, and the judge must consider alternatives. And in Press Enterprise II, the justices created a two-part test for closure decisions.
First, the judge must determine whether there is a right of access by taking into account both experience (whether that type of proceeding historically has been open) and logic (whether openness would play a positive role in the proceeding). Second, if such a right exists, the judge determines whether “higher values” nonetheless require closure (e.g., national security or a defendant’s fair trial rights).
— For civil proceedings, the Supreme Court hasn’t said whether there’s a right of access, but many courts have recognized one by citing Richmond, and then applying the Press Enterprise II test for closure decisions.
— For court records, the Supreme Court recognized a right of access in the 1978 case Nixon v. Warner Communications. The right includes pleadings, motions, evidence, and other materials. The justices said the right was grounded in the common law, but several federal circuits also have recognized the right through the First Amendment, applying the same principles to records that are applied to proceedings. Regardless of its source, the right’s existence is clear.
But, yet again, it’s not absolute. A judge may seal records if a party shows “good cause.” This is supposed to allow a party to shield sensitive information (e.g., trade secrets), but too often sealing is requested to shield something simply unflattering. The press can challenge sealing orders, as the media group did in the Blankenship case, and the key is to use the Press Enterprise II test to evaluate whether there’s a “higher value” to be protected.
— For pretrial publicity and gag orders, the classic case is Sheppard v. Maxwell, even though it’s not really an access case. It was a murder trial whose news coverage was so circus-like that the Supreme Court ruled that the publicity made it impossible for the defendant to get a fair trial. The court focused on the defendant’s Fourteenth Amendment rights, and outlined what courts could do to address prejudicial publicity (e.g., ordering a change of venue, sequestering a jury, importing a jury, delaying a trial).
Courts can impose gag orders, too. They come in two basic forms. The first prohibits the press from publishing certain things about a case, and these typically are struck down as unconstitutional, per the 1976 case Nebraska Press Association v. Stuart. The second prohibits trial participants (e.g., attorneys, parties, witnesses, etc.) from speaking to the press. The Supreme Court hasn’t heard a case on that issue, but lower courts have upheld such gag orders if the trial participants’ speech is “substantially likely” to prejudice the defendant’s fair trial rights.
In any case, if you want to challenge an order—closure, sealing, or gag—as a member of the press, you can ask the trial court for permission to be a party for the purpose of challenging it, or you can ask an appellate court to order the trial court to reverse its decision. Whatever you do, unless you’re prepared to pay fines or go to jail, don’t violate an order to challenge it. You can be held in contempt for doing so, even if the order is struck down later as unconstitutional.
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