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Media challenges gag order in ex-coal CEO's case

CHARLESTON, W.Va. (AP) — News organizations have challenged a judge's gag order in the high-profile criminal case of a former West Virginia coal executive.

On Monday, media members filed a motion asking Judge Irene C. Berger to drop or modify her restrictions in ex-Massey Energy CEO Don Blankenship's case. The judge is prohibiting all parties and victims from discussing the case with the media or releasing court documents.

The Associated Press, The Charleston Gazette, The Wall Street Journal, National Public Radio and West Virginia Public Broadcasting filed the motion to intervene in U.S. District Court in Beckley.

Blankenship is accused of conspiring to violate safety and health standards at the Upper Big Branch Mine, and lying about safety measures to financial regulators. An April 2010 explosion at the Montcoal, West Virginia, mine killed 29 men.

Last month, Blankenship pleaded not guilty and was released on a $5 million bond. He could face up to 31 years in prison if convicted.

Berger's order says that in light of the case's prior publicity, her restrictions will ensure a field of jurors "who can be fair and impartial and whose verdict is based only upon evidence presented during trial."

The order has also restricted access to court filings to case participants and court personnel.

The media's filing says the prohibitions are overly broad and infringe on free speech rights. Berger offered no information supporting why a jury wouldn't be fair and impartial without the restrictions, the motion says.

The filing of the news organizations also says the gag order is infringing on their constitutional right to do their job.

"A reporter's First Amendment right to publish is meaningless if it is prevented from gathering news in the first instance," Charleston attorney Sean P. McGinley wrote on behalf of the media.

Careful jury selection measures would be a less restrictive means to protect the case, if need be, the motion says.

For the last four years, families and friends of the Upper Big Branch victims have told their stories to reporters. Several didn't see any reason to stop now, despite the gag order.

"Don't we have a voice as an American?" Bobby Sanger, whose brother-in-law, Benny Willingham, died at Upper Big Branch, told reporters after Blankenship's arraignment last month. "We've all voiced our opinions the days before, the days after this happened."

At Upper Big Branch, four investigations found worn and broken cutting equipment created a spark that ignited accumulations of coal dust and methane gas. Broken and clogged water sprayers then allowed what should have been a minor flare-up to become an inferno.

Blankenship has said natural gas, and not methane gas and excess coal dust, was at the root of the explosion. Authorities have dismissed the argument.

The indictment painted Blankenship as a bullish micromanager who was intricately aware of Upper Big Branch's operations. At times, he received updates about the mine every 30 minutes, according to the indictment.

Massey was cited for safety violations 835 times from January 2008 until the 2010 explosion, the indictment said.

In December 2010, Blankenship announced his retirement and Massey Energy agreed the following month to be taken over by Alpha Natural Resources in a $7.1 billion deal.


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