CHARLESTON — A gag order restricting parties or victims from discussing a former coal executive’s criminal case violates the free speech rights of potential trial participants, the public and the media, the American Civil Liberties Union of West Virginia said in a court filing supporting a challenge of the decision.

The ACLU is seeking permission to intervene in the case so it can request a reconsideration or dismissal of the gag order issued by U.S. District Judge Irene Berger. The order prohibits parties or victims from discussing the case with reporters or releasing court documents, though victims’ families have spoken to the media anyway. It also seals court filings from public view.

“The gag order issued in this case places a dangerous prior restraint on potential parties and witnesses and seals all of the filings in a criminal case of national interest. This violates the First Amendment rights of potential trial participants, the public, and the media,” the ACLU said in a proposed friend of the court brief filed Thursday and distributed to media outlets on Friday.

“The American criminal justice system is based upon principles of fairness and openness, and is not a system where speech can permissibly be frozen on a matter of public importance.”

The Associated Press, The Charleston Gazette, The Wall Street Journal, National Public Radio and Friends of West Virginia Public Broadcasting have asked Berger to drop or modify the order. Berger had not ruled on the motion as of Friday afternoon.

Former Massey Energy CEO Don Blankenship is charged with conspiring to violate safety and health standards at Upper Big Branch Mine, where a 2010 explosion killed 29 men. He also faces charges of lying to federal financial regulators about safety measures in the deadly blast. 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.  

“The criminal trial of a public figure in relation to the deadliest mining disaster in the United States in five decades is indisputably a matter of public concern,” the ACLU said in its brief.

On Wednesday, Blankenship told Berger that he wants his case moved and his trial delayed for a year.

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