Case 8:13-cv-03059-GJH Document 314 Filed 11/06/15 Page 1 of 1

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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Re: Kimberlin v. Frey No GJH 13.3059 _. I iCc

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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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Bethesda, MD 20817

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Case 8:13-cv-03059-GJH Document 314-1 Filed 11/06/15 Page 1 of 7

UNPUBLISHED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.

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

at
Court for the Southern District of West Virginia,
(5:l4-cr-00244-l)
Irene C. Berger, District Judge.

Argued:

March

2, 2015

Decided:

March

District
Beckley.

5, 2015

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Case 8:13-cv-03059-GJH Document 314-1 Filed 11/06/15 Page 2 of 7

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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Case 8:13-cv-03059-GJH Document 314-1 Filed 11/06/15 Page 3 of 7

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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Case 8:13-cv-03059-GJH Document 314-1 Filed 11/06/15 Page 4 of 7

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

ext raj udicial

in

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

any member of the

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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Case 8:13-cv-03059-GJH Document 314-1 Filed 11/06/15 Page 5 of 7

We

order.'

granted

Petitioners'

Motion

for

Expedited

Consideration of the Petition for Mandamus given the substantial

First Amendment issues at stake.
oral

argument

Defendant

on

behalf

Blankenship,

of
and

We have had the benefit of

Petitioners,
we

have

the

government,

carefully

reviewed

and
the

submissions of the parties and amici.

Petitioners appropriately seek mandamus relief, as it" is
the

preferred

method

for

review

of

orders

activity related to criminal proceedings."

Co.,

Inc.,

917

F.2d

124,126

(4th Cir.

(quotation marks and citation omitted).

restricting

press

In re State-Record
1990)

(per curiam)

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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Case 8:13-cv-03059-GJH Document 314-1 Filed 11/06/15 Page 6 of 7

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.

Case 8:13-cv-03059-GJH Document 314-1 Filed 11/06/15 Page 7 of 7

we

cannot

F.3d

134,

1010

(4th

539,

562

(1976) .
Accordingly,
district

court

amended sealing

the
is

petition

directed

and gag order

for
to

mandamus is
enter

of January

an

GRANTEDand

order

vacating

the
its

7, 2015.
SO ORDERED