as and the one nonprofit that supports public radio in this in the state of west virginia and what we seek in there's a writ of mandamus is in order vacating orders by the district court that sealed and gag individuals involved in a very important case going on and in the us for dinner right now the district court order violates the first amendment because it prevents essentially any public disclosure of anything touching on quote the facts or substance that's the words of the order of an important criminal prosecution and it does that by sealing records as to which there's a constitutional right of access and gagging anyone who knows anything at all about the case and this is a particularly important case and therefore particularly wrong case to deny public access there is heightened public interest and heightened first amendment concerns in cases of where individuals are accused of these types of crimes this is a case involving perhaps the most well known individual in the state of west virginia he's been accused of wrongdoing that contributed to the death of twenty nine people and the gag order as you describe it is pretty getting answers when it has to do with the standard that applies before this type of order can be imposed that a gag order affects individuals first amendment rights there is a long line of cases in this circuit which has stead that gag orders can be placed on attorneys because they're officers of the court under a standard of reasonable probability of prejudice to the defense fair trial rights a lesser standard this quarter goes beyond this this order goes beyond that it's not just parties i sorry it's not just lawyers and it's not just parties who are closely aligned with the lawyers it goes to witnesses of the crime and goes to victims of the crime it goes to families of victims and anyone who potentially has information that might be relevant to the case that that was the point  but what i would suggest is that one of the things we would be useful for this court to do is to clarify the standards it makes a difference when you extend a gag order beyond the lawyers and the parties to others out in the world they have first amendment rights and what we  argue or propose in our in our papers is that when you're going to go that broad there's a higher standard you have to have a substantial probability of harm which is the standard the supreme court has has used in the nebraska press case dealing with prior restraints generally is in press enterprise very specifically before you can see all court records and in the genteel case dealing with lawyers speech that was a standard they upheld now this court and morrissey said that didn't mean a lower standard couldn't be used for lawyers but we would that one of the also the limit is absolute there should be a higher standard and just to finish that thought the sixth circuit in c b s versus young said the higher standard applies to this type of gag just as the judge berger distinguished that incorrectly the court seemed to say it was intended to apply only to those who were likely to be witnesses or participants in the trial leaving aside whether an order can be revised in a memorandum you know i think it's a it's a little confusing because in the memorandum the judge very specifically says this is not a blanket on anyone who knows anything about the facts or substance of the case but if you read the order that's exactly what it says it says if you know anything about the facts or substance and the gag order just won't be  gag order was not changed it's the same gag order from the original what she did change was the sealing order they originally sealing order said everything is sealed but the court did say something about the scope of the gag order related but it's totally unclear what that means and  look at what the impact of it has been you know we have a motion pending before the district court right now which i haven't seen because it's under knives i think that this one is not under seal but that motion specifically says that there are victims of family members out there who believe that under this order they are barred from going to the state legislature to offering testimony about changes in state laws dealing with mine safety there is a reported article that the federal mine safety and health administration in  it's not even effective i mean we can go through there's a number of reasons i wanted to start with what the standard is and i believe as i said i believe the proper standard for both the gag and the sealing order is that the judge had to find a substantial probability of harm t legislature is looking to speak to the to the press what to the media if you're different well the problem with this order is it gags people who want to speak with the reporters reporters have a protection in their ability to gather the news that's what was said and c b s versus young by the sixth circuit that's what the circuits that in the matthews case so we have standing and there's clear constitutional harm to our rights and that's what we're here to protect and under both the sealing order and the gag order the standard is is there a substantial probability of harm to the defendant's fair trial right there's absolutely no doubt on the ceiling order side this court has said that repeatedly the supreme court said that in press enterprise two and there's  things that have to be shown to seal a court record where the constitutional right applies they have to show a substantial probability of harm to a compelling right here perhaps the defendant's fair trial rights could be a compelling harm you have to show no alternatives in this course of their speed a substantial probability that alternatives won't work and you have to show a substantial probability that the order will be effective and the fourth prong which this court has also said in the supreme court set a precedent to two is that it has to be narrowly drawn and this order fails at every step with the first one the district court fundamentally misperceived what it was she was being asked to do she recognized or she believed that her obligation in fact she calls it her duty as a trial court judge was to prevent ta to the jury pool that is not what her goal was her goal was to be sure that she would be able when the time came to find twelve individuals who could set aside any prejudices and decide the information decide the case on the basis of the evidence and information and argument presented at trial knowledge of the case is not jury tanked and so she viewed very very clearly the her role to do that she said for example on page six of her order that that the court has  duty to take specific reasonable steps to guard against prejudice at the outset where it has knowledge from prior publisher of the that published that he that continued publicity regarding the facts underlying the indictment is likely to taint prospective jurors that's not the right standard so that was her for her first thing and this court has specifically said that's not the right standard in the charlotte observer case that we cite from one thousand nine hundred eighty nine what the court said is the issue is not whether there is so much publicity that preventive action is needed but whether publication of specific information would so to the balance that action must be taken so so that takes us to the second point that is what does that lead us to say that we've got determine what the specific information is absolutely absolutely and the ceiling order there's it's absolutely clear she you can't design an order saying prospectively everything in this case is going to be under seal the court has an obligation to look at the specific information and decide if that information is likely to prejudice the jury pool now there's a slightly different analysis that goes into the gag order because obviously you know you don't have control over people but when documents come into court you can't just seal them as they were done here this is where the legal  sometimes can run into a situation with the reality we talk about west virginia is one who is very much in the state of west virginia she says is co country she knows ground know the term environment of what's going on here is there something we're missing in this that comes to mind when we start imploring well melissa thick legal terms not formalised and since they don't exist they do exist just as you've said but you know for consistency purposes we have to but are we missing something here in our analysis of this haze given i mean don't we take in consideration those other factors the environment i think that it's appropriate to take into consideration the environment that the court is operating certainly the problem is what the district court didn't do was take into consideration the scope of the public's right here she didn't view that as important she viewed it as subsidiary and that's just wrong and and it's clear very to a defendant's right to a fair trial absolutely and they're not it's not a subsidiary right there co equal rights and the court has an obligation to take steps to try to accommodate both of those interests particularly in a case like this it's not just that this is a big important man it's not someone who who a a a judge on the west virginia supreme court has said there is created a cancer in the state courts and now you're going to have a trial where all the records are sealed i mean what are the people going to think about that how is that going to promote confidence in the judicial system and fairness that's what the first amendment right is for and what the supreme court said in waller is that the first amendment interests are even heightened where you have charges of official misconduct and here as far as we can tell from the docket the defendant is saying there's been all sorts of prosecutorial mis question misconduct that the judge should be recuse all of these things happening access is critical in this case and this order fundamentally misunderstands that and applied the wrong standard and so it's not just the standard it's you know how do you predict some of these things are predictive it's somewhat difficult to but what the supreme court said in nebraska press is that what you should be looking at is not just the amount of publicity but the tone you know is it vindictive there's nothing in the record as far as i know that says that the newspaper the west or the charleston because that has been going after this person and is it true that you and your clients have not seen the opposition to your motion to intervening that's correct  judge and that's because these well i tell you that we've seen the memorandum that was submitted we haven't seen the factual support that cited in the change of venue motion and things like that but i'm not talking about the change of venue i'm talking about the opposition i thought your opposition the that you bring up what the defendant is saying he's not saying that we need this because the papers are going crazy and after he says we need it because there are protesters carrying signs accusing me of things we need to because there are state senators and public officials who are making statements well that's going to continue that's going to continue this is ineffective what's not going to happen is the public is not going to know what's happening in the trial and why it's happening and have any sense of fairness so the order itself is not effective and again that's a point that this court made very specifically in the charleston observer case what it said is even if persuasive pervasive publicize the risks trial rights closure as a practical matter is not effective where you have this type of publicity what the court said there was we must be realistic about the imperatives under which a free press operates in our constitutional system and we're closure is wholly in a fictitious to prevent or perceived harm that alone makes it constitutionally impermissible we have that here and finally and terms of the forepart standard we have you know that it's it's she didn't meet the standard of harm it's not effective she didn't consider alternatives what the district court said is well jury  that one of the reasons that she feels this is not overly broad is because of the the proceedings will be open but motions are oftentimes decided on papers if you go to a argument and you haven't had a chance to read the papers it means the reporting is not going to be as accurate people are going to understand what's going on and remember there are barred from asking the law the reporters are barred from asking lawyers after an argument about what happened the same time if the motions argue what's set forth in the papers will be repeated in open court or much of it equally important of the sixth amendment right is used as there's just you suggest that course you do recognize the right to trial you say i think apple that first of all rights also but is it also a venue that's not just to defend his right the right to a how do you how do you value these competing rights and and and the first question is you don't even get to a change of venue unless you reach the point that you cannot find twelve impartial jurors there was a decision handed down by the first circuit i just wanted to mention that came down on friday get to trial we might not be able to find told us a fair point but but the point is you really can't say cavalierly just do a change of venue if this is no but the point is a change of venue is is an option when you're weighing the different interests and you have to consider as i said this is a very important case not just to the people west virginia but to people around the nation and the public has a has a right and a need to know that justice is being done fairly and at the end of the day if there was a determination that you couldn't find an impartial jury in that jurisdiction then you would have to weigh what are the options but i just want to make two really quick points if i might in all of the cases where the supreme court and there's not that many where they've said there's been a denial of a due process a fair trial right bec publicist it's also included things that happen in the courtroom and it's always been in cases where there were confessions that were played or that were staged you don't have that type of content here this is not a case where where the press is going to be repeating repeating something the defendant said that maybe will violate his right because he's not going to take the stand in fact to the contrary you have a situation where the defendant has made a movie explaining why he's not not guilty he's he's produced it he's paid to have it played on public v it's on the website today you can still get it if you live there right rightly or wrongly the district court says that because i know what is already trans body in terms of what's being disseminated to the public it's the district court is being prophylactic as i said when we're talking really judge when there are cases where gag orders are permissible particularly gag orders on parties and lawyers there are circumstances but it's a very high standard that standard hasn't been met here this public confidence argument a country where you don't tail what's going on you never do find out i mean ultimately you will find out so that will that will let you know whether the public's going to have confidence in what happened then you get that point but i don't want to get hung up on about i just think that that news when people are interested in an issue after something's over to go back and try to parse it apart you're right there's some value to that but it is not a substitute and even even the fact that the judge said this is going to be in place these restrictions complacence through the trial is another error they have to narrowly tailor it once she picks a jury she has control over that jury you can't continue this all the way through trial and stop access to motion papers and everything once you have the jury so there's many many ways that this is inappropriate and i just wanted to a bet i mean it would be that public confidence should be protected at all times and should have to wait in its route to get it back well i think i would rephrase it and i would just say that that the public access is critical to public confidence in the courts we don't live in a system where we have secret trials and if you take that away you undermine the integrity of the judicial system and it's not just the confidence but what the supreme court said in richmond newspaper is public access makes courts function better it prevents perjury it avoids abuse it let's people know what's going on it provides a community therapeutic value it you know you don't have there's a lot of inflamed emotions here you're not going to have the same resolution of that if everything's being done on a sealed record and just i know my time is i just wanted to point out that the first circuit last friday handed on a case joke sure sorry price of that wrong but it's and it involves many of the same issues it was a change of venue not a ceiling case but they make all of the same points about the importance of the availability of jury voir dire as an adequate alternative to doing other types of things to protect it and it's fair trial rights it talks about all the cases where we have apple evidence that poor dear is appropriate you know west virginia is a state of one point eight million people beckley is a town of thirty seven thousand in new brassica press the supreme court said there was not sufficient basis for the the prior restraint there even though that was a murder effective at the same time it's you don't need to cut back on these for human rights the supreme court said the same thing in skilling where he challenged the fact that he didn't get a change of venue in a case where there was no gag order the court did allow a gag order and the supreme court said there wasn't a denial even the just a sort of my or who wrote it dissent in that case did not dispute that an effective or dear is appropriate way to remedy any of these harm she just didn't feel the district in that case had done enough of the searching border all of these cases the my sally case in this commonwealth was tried was going to go to trial you know a short car ride from the pentagon where he was alleged to have caused great damage we don't cut off the public's right to know what's going on in courtrooms particularly criminal court rooms to defend the sixth amendment interests when there are other avenues avail may please the court judge gregory judge when judge davis my name's steve ruby and i'm here today for the united states i appreciate the courts making really some of the court's making a special trip to richmond on account of our case but as the court may can argue not a position if the court will permit i'd like to take just the a brief moment and explain why the united states is not taking a position on the order and some of that discussion may may be of assistance to the court  first of all and i'll pick up where mr schultz left off your honour's the precedents of this court in the supreme court make clear that with or without the order it's being challenged here today we can have a fair trial with twelve impartial jurors in the southern district of west virginia where the crimes that the defendant is charged with occurred the important thing is careful for deer well if you can have a fair trial why would you have to or for the defense did not ask for it it just sprung forth now in the district court as handle number of cases correct throwing out of the the incident the drinks to sue that's correct your honor do you think that that was what the was drawing on sort of what was learned in these other cases what was observed i i i don't want to go too far in speculating about birds but process here but i would  i certainly would suspect that that's a component that you know a lot of district courts look to the united states for help yeah and so is that enough just to say we take no p sometimes i mean you have a responsibility i mean you personally but the united states attorney's office has every bit as much an obligation to ensure the defendant enjoys the six remember right to counsel and that the public enjoys the first amendment right of access i'm just not sure i don't mean to be critical and i understand the prosecutor in a case like this is somewhat in a difficult position but maybe sometimes you have to just take a position you know i know when i was a district judge i loved it when lawyers stood up as a judge you're wrong we're not asking you to do it but we think you're right get in trouble here i understand your honor and and i certainly appreciate the court's point in that regard and we thought the united states thought long and hard about whether to take a whether to take a position in the case or not or not and ultimately as i said our conclusion is that our conclusion that th ways i mean there are times in course the number of cases out we all know about cases out which publish it it actually helps of the so i don't know it can cut both ways but somebody needs to stand up and says somebody believes there can't be a fair and impartial trial before this court that it seems like to me somebody ought to be defending this water other than we respect the balance which is we don't investigator you're not going to have them they can stay that's absolutely correct so the order is unnecessary as far as you're concerned it's not a hindrance to anything that that we plan to do in this case so you know a few other cases out there you probably would want to stand new school since do i and the precedents from this court and the supreme court a very strong on this point that our dear is and is a completely effective method to seat a jury even in cases where there has been substantial publicity and i that point the fact that that border can effectively serve the purpose of seating an impartial jury even a publicized case that that leads us to conclude  as i said at the outset that the defendant can be tried fairly in the southern district of west virginia with or without the order that it's under discussion i did you argue that to the district court we did hear i did yes we in the district court argument we were our comments were similar to the comments that i've made here today we didn't take a position one way or another on the order but we did make the point that under the president as we understand them for a day or should be able to to resolve any problems that have arisen as a result of the publicity surrounding this so can you this can you can you represent on behalf of the government that you is that if this court were to remove the order of sealing and the gag order it would be no thing first to the government's prosecution of this case to the to the that that is our position here on  should be granted in this case that issue is not before the school and we respectfully urge the court to refrain from expressing any any views about the appropriateness or not of the transfer in the district following sense we do not support dissolution of the sort of under the present circumstance the district judge is right about the extent to which this community has been and continues to be affected by the explosion she lives last november that's not in the gang all of the facts being criminally prosecute no doubt about it we know that now and you've got all these facts including well done a documentary yourself on this and you come out and talked about it i have all these years i'm not i'm trying to state your honor is that the district court which whose opinion matters more than mine looked at the existing published city and she made findings she made specific findings about the existing public city she said i have reviewed the published city scene statements by the family and investigators the type of published city limited by the court order would inevitably lead to prejudice in this case but that's a process that doesn't comport with the law that would be a discretionary determination by a judge yet there are four factors that have to be considered in determining whether prejudicial published today in this case and i think i'm not so sure that's true with the till you see publicising does not equal prejudice the cases tell us that over and over again i don't think there's any such thing is in her prejudice that's the meaning of these cases that you've got to go through step by step and assess very carefully what prejudice is likely to rise in the light of the alternatives that can be undertaken if it's so such things as portraits of pictures of mr blanket ship with the word murder underneath are the kinds of things we're talking we're talking about public investigations the court referred to for investigations by public agencies all of which concluded that the safety violations  they exactly been in the public record for over a year that's so what i what i'm having difficulty with is how do your get from all of that's out there and yet this sealing order and this gag order has the purpose of taping up people's mouths around stuff they've been talking about for years well and i apologize i missed i missed your point what what she says is at page six given the prior published city continued published today regarding the facts is likely to taint prospective jurors and to the extent that the petitioners argue that she did not make findings we we fundamentally disagree and i think that the the port the part that you read a moment ago using the word in evan to bowl i think that as judge will suggest that maybe he didn't mean it but it sounds to me like a conclusion of law much more that a finding of fact the say that prejudice is inevitable that criticize the district court for not making a balancing search of alternatives for not with the help of the party that well seat they say they say she didn't consider other alternatives and i must say that argument has some force it seems to me that it has certainly had some force as of november the fourteenth when it was issued end of january when it was modified and had the district judge said i have before me a motion to transfer and i'm going to say not i'm going to still going to keep my dad and sealing order in effect until i decide th motion to transfer then it seems to me disturbing her discretion in that regard would be quite a different question for an appellate court on a mandamus standard and in fact that's where we are are what we have said to this court is that is where we are there is pending below the motion to transfer but haven't we said following the supreme court that there is no de minimis exception to the first amendment mean it could close up court for day you could close court records for a week while something happens but i just don't see how that's consistent with just decades and decades of precedent into face first amendment rights every gag order affects first amendment rights by definition and the reason why gag orders are sustained by they are exceptions when you can show that rather i will try but i'd rather if i may finish my thought if the district court grants the motion to transfer then this order largely becomes and if the district court doesn't grant the motion to transfer then we are no longer in a what if situation for this court's judgment we can you can measure the harm or the court's evaluation of the harm against the actual place in the actual place where the trial is going to take place my point to you is that as a matter of appellate administration of the trial court's pretrial docket that the fact that we have pending in this case a most to transfer which is a serious motion if i do say so myself and i can't tell you when it's going to be decided because there are other motions which you know so what if there it will soon there being violated there's no harm no foul down the road there this case presents some difficult constitutional questions and i think appellate courts frequently prefer not to resolve questions which are not necessary to resolve my point to you is that if the transfer is granted this becomes moot i cannot respectfully tell you when when that will be  nor which district judge will make that decision because as you know we have requested that the chief judge appoint another judge to hear this case in that district and we do not know when that motion or the others and being here one is to respectfully suggest that that whatever you decide to do should not should be done with a view to the fact that people are going to look at it in terms of the the t the public would be vindicated i want to make a couple quick things or so i want to apologize about that confusion before but to clarify the record we did receive the papers in it with we didn't get him till after the motion intervene was granted and so we didn't have the time of oral argument in the district court just so that to clarify that which is in our brief we argued this originally on no grounds the other thing the question that came up in discussing this with the government and with the defendant about this being a suicide and a order it's my understanding that this is not an unusual order for this particular judge to enter it wasn't unique to this case which is all the more reason why there needs to be some guidance from this court about what goes on during the month other messy related cases or just general you that's fair enough to judge but on the basis of what's in front of you i believe that there's plenty that could be said about what was wrong with this particular order i just wonder spahn then to briefly to the points were being made by the defendant's lawyer here about the motions in venue changing everything i mean number one course that's a sealed motion and of itself which is an odd thing that we're arguing this mandamus petition on a sealed record but it doesn't address the fact that there is a continuing violation as a judge when pointed out of the constitutional right of access the fact that things might be made available later is irrelevant it puts the cart before the horse and i want to go back to judge wins question but i really do think that we started with isn't there some narrowing that can be done here and i think the answer is of course you know first the judge  should be instructed on the proper standard to be applied but if there is something that needs to be done first in terms of the ceiling there would have to be kind of a case by case assessment of particular records and findings about why that information is going to so inflame the community that it can properly be kept secret as judge davis and his came out on the other question there's so much information out there that that's going to very hard standard to me and as to the gag order clearly it's inappropriate to keep it as broad as it is that's again i go back to why the standard is wrong i just heard the defense counsel saying that they're concerned about publicity because they're concerned about statements by families and investigators so step back and think about what's going on here the judge entered an order basically telling the whole world to stop talking about this she doesn't have that power so he was saying that a judge should do what's within her power this is not within her power that's what the supreme court said you never ask a press if you can just order and join the world sort of does not prohibit the public in general from doing it if it applies to anybody who knows anything about the case of us a lot of the public gets the special subset of people people who it's an example i finished my sergeant courthouse all those they don't say that well it says if you're a family member of a victim if you're a victim or if you're an alleged victim i don't know what those terms mean but you know arguably anybody who you know worked at the mine in order in which time to do this order with respect to his securities fraud i mean that's the fundamental problem with this order it's just a blunderbuss blanket order trying to time to shut down any discussion of the facts relating to this case and that's an approach that you hear all of mandamus as you it's a tough headed we have to establish a clear legal right and i believe that this court on precedent establishes that and i go back again to the charlotte observer case that the argument here is well this change of venue menu should change everything  that needs to be kept secret what the court was looking at in charlotte observer was a sealed motion to change venue that it said was improper and it said what the standards are so it's here to you know even if there is some of what i heard the friend say there may be some reason to keep things in that in that motion to change venue secret this is much broader than that and what charlotte observer says is even the change of venue motion should be public so there will be tailored such that only the parts that you clearly would win on that that where there is a clear legal right that's been violated under the mandamus standard that should be decided you know what this court has said is that where there are constitutional rights at stake it's a did novo review so i don't think you just to defer to the district court i think you have to look at the record and decide whether there is a basis for the order and clearly there's no basis for an order that's this broad where there are alternatives available and where it's ineffective those violates every one of the standards that this court has articulated over and over what the district court i don't know whether and i won't get into whether or not they also will be the decision of this court but it would have seemed like the district court was trying to get at least seem to be that out i'm trying to get based on what i've seen in this case what i fundamentally while i understand the impulse that it's misguided in this case what she's really saying is we don't want people expressing their anger and expressing their hostility this is not a case like those cases where the supreme court has been concerned about due process where the defendant has been quoted or where you had a tape recording of him admitting to wrongdoing in ways that a jury might not be able to set aside the issue is are there statements being said that are so inflammatory and so prejudicial that you can't find twelve individuals in a state of one point eight million people who could who could up hold their duty as a jury to decide the case as instructed by the judge on the facts and evidence and we don't just shut down the talking because we're concerned about that possibility and that's why i say it puts the court behind before the horse until the until the border process is allowed to proceed we don't know for sure and there's nothing there's nothing about this record that's different from it unless within a week one day five days wherever the court or with rule on in other words in the sense that you have to do th venue the venue motion does nothing to effect the problems with this gag order and whether it's granted or denied if we want a menu potion is denied this order does not become constitutional so that there's nothing to be gained by putting that off know that we don't know what the continues she will not sequester ation void via none of those mechanisms going to help save this case or fair trial and so basically she's basically would be saying let's not continue any further damage and i'm just we're just reacting to that i don't hear actually we can't do it i don't believe that you don't think we have the power to do it or you think no no no you don't want to do it but no you have the power to do it i believe that on the basis of the record in front of th decision until the district court does them other words when i say that maybe you're right maybe it is unconstitutional but but there's nothing the court could do there's no facts that the court could find that would justify a gag order as broad as the one here and as vague as the one here it can't be done the court has to amend it even if it found there was a sufficient factual record to say that there is a substantial probability that we cannot have a fair trial in this district absent some some steps and think this court has never gone that far i don't think you could go that far and i don't think that motion to change venue does anything to that i mean that's what the charlotte observer case was about these are not the types of facts that justify this type of restraint they're not the types of fact that justify sealing a record and denying the public's right to know what goes on in a very important case involving a very high profile individual who who is making allegations of wrongdoing against the judges and the prosecutor in the district where this is happening the public has a right and a need to know that information thank you thank you very much for coming down up to richmond and being here and asked the court