In Re: The Wall Street Journal v.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1179
In re: THE WALL STREET JOURNAL; THE ASSOCIATED PRESS;
CHARLESTON GAZETTE; NATIONAL PUBLIC RADIO, INC.; FRIENDS OF
WEST VIRGINIA PUBLIC BROADCASTING, INC.,
Petitioners.
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THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; AMERICAN
SOCIETY OF NEWS EDITORS; AOL, INC. (HUFFINGTON POST);
ASSOCIATION OF ALTERNATIVE NEWSMEDIA; THE ASSOCIATION OF
AMERICAN PUBLISHERS INCORPORATED; BLOOMBERG, L.P.; THE
CENTER FOR INVESTIGATIVE REPORTING; COURTHOUSE NEWS SERVICE;
FIRST AMENDMENT COALITION; FIRST LOOK MEDIA, INC.; HEARST
CORPORATION; INVESTIGATIVE REPORTING WORKSHOP AT AMERICAN
UNIVERSITY; JOURNAL SENTINEL, INC.; THE MCCLATCHY COMPANY;
MINE SAFETY & HEALTH NEWS; NEWSPAPER ASSOCIATION OF AMERICA;
THE NATIONAL PRESS CLUB; NATIONAL PRESS PHOTOGRAPHERS
ASSOCIATION; NBCUNIVERSAL MEDIA, LLC; NEW ENGLAND NEWSPAPER
AND PRESS ASSOCIATION, INC.; NEW ENGLAND SOCIETY OF
NEWSPAPER EDITORS; THE NEW YORK TIMES COMPANY; NORTH JERSEY
MEDIA GROUP, INC.; ONLINE NEWS ASSOCIATION; REUTERS AMERICA
LLC; THE SEATTLE TIMES COMPANY; SOCIETY OF PROFESSIONAL
JOURNALISTS; THE THOMAS JEFFERSON CENTER FOR THE PROTECTION
OF FREE EXPRESSION; TRIBUNE PUBLISHING COMPANY; TULLY CENTER
FOR FREE SPEECH,
Amici Supporting Petitioners.
On Petition for Writ of Mandamus to the United States District
Court for the Southern District of West Virginia, at Beckley.
Irene C. Berger, District Judge. (5:14-cr-00244-1)
Argued: March 2, 2015 Decided: March 5, 2015
Before GREGORY and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Petition granted by unpublished per curiam order.
ARGUED: David A. Schulz, LEVINE SULLIVAN KOCH & SCHULZ LLP, New
York, New York, for Petitioners. Steven Robert Ruby, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Respondent United States. William Woodruff Taylor, III,
ZUCKERMAN SPAEDER LLP, Washington, D.C., for Respondent Donald
L. Blankenship. ON BRIEF: Sean P. McGinley, DITRAPANO BARRETT
DIPIERO MCGINLEY & SIMMONS, PLLC, Charleston, West Virginia;
Katherine M. Bolger, LEVINE SULLIVAN KOCH & SCHULZ LLP, New
York, New York, for Petitioners. James A. Walls, SPILMAN THOMAS
& BATTLE, PLLC, Morgantown, West Virginia; Blair G. Brown,
ZUCKERMAN SPAEDER LLP, Washington, D.C., for Respondent Donald
L. Blankenship. R. Booth Goodwin, II, United States Attorney,
R. Gregory McVey, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Respondent United States. Bruce D. Brown, Gregg P. Leslie,
Katie Townsend, Tom Isler, REPORTERS COMMITTEE FOR FREEDOM OF
THE PRESS, Washington, D.C., for Amicus The Reporters Committee
for Freedom of the Press; Kevin M. Goldberg, FLETCHER, HEALD &
HILDRETH, PLC, Arlington, Virginia, for Amici American Society
of News Editors and Association of Alternative Newsmedia;
Jonathan Bloom, WEIL, GOTSHAL & MANGES LLP, New York, New York,
for Amicus The Association of American Publishers, Incorporated;
Rachel Matteo-Boehm, BRYAN CAVE LLP, San Francisco, California,
for Amicus Courthouse News Service; Mickey H. Osterreicher,
Buffalo, New York, for Amicus National Press Photographers
Association; Robert A. Bertsche, PRINCE LOBEL TYE LLP, Boston,
Massachusetts, for Amici New England Newspaper and Press
Association, Incorporated and New England Society of Newspaper
Editors; Charles D. Tobin, HOLLAND & KNIGHT LLP, Washington,
D.C., for Amicus The National Press Club; Michael Kovaka, COOLEY
LLP, Washington, D.C., for Amicus Online News Association; Bruce
W. Sanford, Laurie A. Babinski, BAKER & HOSTETLER LLP,
Washington, D.C., for Amicus Society of Professional
Journalists; Kurt Wimmer, COVINGTON & BURLING LLP, Washington,
D.C., for Amicus The Newspaper Association of America; Regina
Thomas, Assistant General Counsel, AOL INC., Dulles, Virginia;
Randy L. Shapiro, Global Media Counsel, BLOOMBERG, LP, New York,
New York; Judy Alexander, Chief Legal Counsel, THE CENTER FOR
INVESTIGATIVE REPORTING, Soquel, California; Peter Scheer, FIRST
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AMENDMENT COALITION, San Rafael, California; Lynn Oberlander,
General Counsel, Media Operations, FIRST LOOK MEDIA, INC., New
York, New York; Jonathan Donnellan, Kristina Findikyan, Office
of General Counsel, HEARST CORPORATION, New York, New York; Mary
Hill Taibl, Senior Vice President, General Counsel, Secretary,
Chief Compliance Officer, JOURNAL SENTINEL, INC., Milwaukee,
Wisconsin; Karole Morgan-Prager, Juan Cornejo, THE MCCLATCHY
COMPANY, Sacramento, California; Beth R. Lobel, Vice President,
Media Law, NBCUNIVERSAL MEDIA, LLC, New York, New York; David
McCraw, Vice President/Assistant General Counsel, THE NEW YORK
TIMES COMPANY, New York, New York; Gail C. Gove, Chief Counsel,
Katharine Larsen, Counsel, News, REUTERS AMERICA LLC, New York,
New York; Karen H. Flax, Chicago, Illinois, Jeff Glasser,
TRIBUNE PUBLISHING COMPANY, Los Angeles, California; Jennifer A.
Borg, General Counsel, NORTH JERSEY MEDIA GROUP INC., Woodland
Park, New Jersey; J. Joshua Wheeler, THE JEFFERSON CENTER FOR
THE PROTECTION OF FREE EXPRESSION, Charlottesville, Virginia,
for Amici Curiae.
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ORDER
PER CURIAM:
This matter comes before us on a Petition for Writ of
Mandamus filed by a group of news organizations and a non-
profit, all of whom the United States District Court for the
Southern District of West Virginia permitted to intervene in a
pending criminal case. Having been largely rebuffed by the
district court, Petitioners seek vacatur of a sealing and gag
order which prohibits: (1) public access to most documents filed
in the case and (2) the parties, their counsel, potential trial
participants, court personnel, and others from discussing the
case with any member of the media.
The district court, sua sponte, issued its order
restricting access to the docket and prohibiting extrajudicial
statements one day after a grand jury sitting in the district
returned the indictment. Petitioners moved to intervene in the
case and requested the district court to reconsider or vacate
its order. Defendant, Donald Blankenship, opposed the motion;
the government took no position as to the propriety of the order
or of its scope. After a hearing, the district court granted
Petitioners’ motion to intervene and modified the sealing and
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gag order. * We granted Petitioners’ Motion for Expedited
Consideration of the Petition for Mandamus given the substantial
First Amendment issues at stake. We have had the benefit of
oral argument on behalf of Petitioners, the government, and
Defendant Blankenship, and we have carefully reviewed the
submissions of the parties and amici.
Petitioners appropriately seek mandamus relief, as it “is
the preferred method for review of orders restricting press
activity related to criminal proceedings.” In re State-Record
Co., Inc., 917 F.2d 124, 126 (4th Cir. 1990) (per curiam)
(quotation marks and citation omitted). Petitioners meet the
*
The amended order states in relevant part:
“Wherefore, the Court does hereby ORDER that neither the
parties, their counsel, other representatives or members of
their staff, potential witnesses, including actual and alleged
victims, investigators, family members of actual and alleged
victims as well as of the Defendant, nor any court personnel
shall make 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.”
“The Court further ORDERS that any and all motions,
stipulations, discovery requests, responses, supplemental
requests and responses, and other relevant documents be filed
directly with the Clerk pursuant to Rule 49.1 of the Local Rules
of Criminal Procedure, and that access to any documents filed on
CM/ECF in this matter, which contain information or argument
regarding the facts or substance of this case, be restricted to
case participants and court personnel. However, this order shall
not be applicable to documents which have previously been
released publicly or orders of the Court, absent specific
instruction to the contrary. The Court DIRECTS the Clerk to make
the docket entries publicly available.”
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constitutional requirements for standing because their right
under the First Amendment to gather news, see Branzburg v.
Hayes, 408 U.S. 665, 681 (1972), and to receive speech from
willing speakers, see Stephens v. Cnty. of Albermarle, 524 F.3d
485, 492 (4th Cir. 2008), has been directly impaired by the
district court’s order. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992).
We review de novo the constitutional questions presented in
the Petition. In re Charlotte Observer, 882 F.2d 850, 852 (4th
Cir. 1989).
The public enjoys a qualified right of access to criminal
trials, see Richmond Newspapers v. Virginia, 448 U.S. 555, 580
(1980); pretrial proceedings, see Press-Enter. Co. v. Super.
Ct., 478 U.S. 1, 14 (1986) (“Press-Enterprise II”); and
“documents submitted in the course of a trial,” including
documents filed in connection with a motion to dismiss an
indictment and other pretrial filings. In re Time Inc., 182
F.3d 270, 271 (4th Cir. 1999); see also In re Charlotte
Observer, 882 F.2d at 852. Where the right of an accused to a
fair trial is at stake, the public will not be denied access
absent “specific findings . . . demonstrating that, first, there
is a substantial probability that the defendant’s right to a
fair trial will be prejudiced by publicity that closure would
prevent and, second, reasonable alternatives to closure cannot
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adequately protect the defendant’s fair trial rights.” Press-
Enterprise II, 478 U.S. at 14.
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. See id. See also In re Morrissey, 168 F.3d 134,
139-40 (4th Cir. 1999); In re Russell, 726 F.2d 1007, 1010 (4th
Cir. 1984); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562
(1976).
Accordingly, the petition for mandamus is GRANTED and the
district court is directed to enter an order vacating its
amended sealing and gag order of January 7, 2015.
SO ORDERED
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