Professional Documents
Culture Documents
U.S.ll":
Judge George Hazel
United States District Court
6500 Cherrywood Lane
Greenbelt, MD 20770
Dear Judge Hazel:
October 26 2015
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<3Y__ (,1)_DEPUTY
[ am writing to seek a modification of the protective order in this case to reflect the
holding set forth in the recent Fourth Circuit Case, United States v. Blankenship,
attached hereto, which went up on an appeal by scores of media under the title In re
The Wall Street Journal et 01. In that case, the trial judge issued an order similar to
that issued by you in the instant case prohibiting the press from access to filings in
the court and prohibiting the parties from discussing those documents. The Fourth
Circuit reversed finding that the order interfered with the press' right to gather
news and to receive speech from willing speakers.
Defendant Frey has unilaterally generated a massive amount of publicity about this
case and me over the past five years. Now that the case is proceeding to trial,
members of the press are interested in discovery and talking with me. However,
because of the Court's protective order, [ have advised them that [ cannot share any
information with them. This has placed me in an uncomfortable position because [
am concerned that making any comments to the press would violate your order.
Moreover, there is a very real possibility that the press will move to overturn the
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(301) 320 5921
8100 Beech Tree Road
Bethesda, MD 20817
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DISTRICT OF
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UNPUBLISHED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.
Petitioners.
Argued:
March
2, 2015
Decided:
March
District
Beckley.
5, 2015
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Before
Circuit
Petition
GREGORY and
Judge.
granted
WYNN, Circuit
by unpublished
per
Judges,
curiam
and
DAVIS,
Senior
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,
ZUCKERMANSPAEDER 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,
ZUCKERMANSPAEDER 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 FREEDOMOF
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, WElL, GOTSHAL & MANGESLLP, 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
2
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ORDER
PER CURIAM:
This
matter
comes
Mandamus filed
by
profit,
whom the
all
of
Southern
District
pending
criminal
district
court,
order
in
case
of
with
The
court
West Virginia
Having
returned
case
sua
the
docket
one
requested
the
government
Petitioners'
the
Defendant,
order.
its
after
indictment.
its
of
day
took
scope.
motion
to
to
and
district
to
Blankenship,
a hearing,
intervene
the
and
the
for
the
in
the
sealing
and
gag
filed
potential
from
trial
discussing
issued
the
order
its
the
district
intervene
reconsider
opposed
propriety
district
modified
by
most documents
moved to
court
non-
rebuffed
a
sitting
of
intervene
prohibiting
jury
as to
Court
counsel,
others
Petitioners
Donald
of
sponte,
grand
no position
After
vacatur
Writ
and
to
largely
their
court,
to
permitted
and
for
District
access
parties,
personnel,
district
the
and
seek
Petition
organizations
been
(1) public
the
States
media.
access
on
news
restricting
statements
of
Petitioners
(2)
us
United
case.
and
participants,
or
group
which prohibits:
the
case
before
or
the
the
vacate
motion;
of the
court
the
in
order
granted
sealing
and
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We
order.'
granted
Petitioners'
Motion
for
Expedited
argument
Defendant
on
behalf
Blankenship,
of
and
Petitioners,
we
have
the
government,
carefully
reviewed
and
the
preferred
method
for
review
of
orders
Inc.,
917
F.2d
124,126
(4th Cir.
restricting
press
In re State-Record
1990)
(per curiam)
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constitutional
under
the
Hayes,
First
408
willing
485,
requirements
Amendment to
U.S.
665,
speakers,
see
492
(4th
Cir.
district
court's
U.S.
560-61
555,
We review
the
Petition.
Cir.
1989).
see
(1980);
pretrial
indictment
and
270,
is
fair
is
trial
prevent
and,
will
and
to
Cnty.
been
v.
their
see
receive
directly
right
Branzburg
speech
of Albermarle,
of
v.
from
524 F. 3d
impaired
Defenders
by
Wildlife,
a qualified
the
504
in
in
the
(4th
Where the
public
prejudiced
also
right
will
not
demonstrating
that
the
Time
of
and
re
an
Inc.,
182
Charlotte
to
be
denied
access
that,
first,
there
defendant's
that
alternatives
to
Super.
dismiss
an accused
by publicity
reasonable
580
including
to
In
(4th
555,
II") ;
re
in
criminal
v.
trial,"
In
see
852.
probability
to
Co.
motion
filings.
findings
second,
852
448 U.S.
of
with
1999) ;
the
access
("Press-Enterprise
Cir.
stake,
850,
Press-Enter.
course
pretrial
of
Virginia,
see
connection
other
be
v.
presented
882 F.2d
right
(1986)
14
1,
questions
Observer,
proceedings,
at
substantial
news,
constitutional
Charlotte
882 F. 2d at
"specific
has
Lujan
enjoys
271
trial
absent
v.
because
(1992).
submitted
filed
fair
2008),
order.
U.S.
documents
Observer,
(1972),
Richmond Newspapers
"documents
F.3d
standing
gather
Stephens
In re
trials,
478
681
de novo the
The public
Ct. ,
for
right
closure
closure
to
would
cannot
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adequately
protect
Enterprise
II,
Having
the
are
be
Vvl
V.,JI L.V.J...o..J
!:::to
the
fair
trial
VI
Cir.
(4th
1984);
sincere
to
Cir.
the
and
See
1999);
In
Press-
rights."
that
re
Press
jury
In
Russell,
Ass'n
will
entered
here
168
726 F.2d
1007,
427 U.S.
to
right
be protected,
Morrissey,
Stuart,
V.
effort
Blankenship's
order
re
we commend
proactive
that
the
also
although
forthright
an impartial
id.
trial
record,
possible
conclude
Nebraska
fair
14.
reviewed
before
See
sustained.
at
maximum extent
constrained
139-40
defendant's
carefully
court's
to
the
478 U.S.
district
ensure
to
II ..
U.
we
cannot
F.3d
134,
1010
(4th
539,
562
(1976) .
Accordingly,
district
court
amended sealing
the
is
petition
directed
for
to
mandamus is
enter
of January
an
GRANTEDand
order
vacating
the
its
7, 2015.
SO ORDERED