Coal Tattoo

Protesters win a round against Massey

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A federal magistrate judge has ruled today that anti-mountaintop removal protesters do not have to answer Massey Energy’s questions about who assisted or participated in peaceful civil disobedience actions against the company.

The ruling by U.S. Magistrate Judge R. Clarke VanDervort is posted here.

Massey is suing the protesters, and the company’s lawyers wanted to question defendants in the case about who else was involved in planning or organizing the actions.  But the judge ruled:

In deposing defendants, plantiffs may not inquire specifically respecting other persons who assisted or participated with Defendants in any way prior to, during or after their January, 2010, occupation of Plaintiff’s Beetree Surface Mine property.

As the judge explained:

The First Amendment  … establishes the right to associate with others and organize in protest of the policies and programs of the Government. It applies in the context of discovery as a qualified privilege against disclosure of information when the party asserting the privilege demonstrates that the disclosure would likely impair the associational activities of the group.

In this instance:

Plaintiff indicates that the information gained from its inquiry would aid it in holding the other members of Climate Ground Zero responsible for their further activities against which they were enjoined. Clearly, the information which Plaintiff seeks concerns the members and associational activities of Climate Ground Zero. Courts have consistently found that information respecting the identities of other members of groups organized to conduct protests falls under the First Amendment privilege.

It is evident that disclosure of the information which Plaintiff seeks may have a chilling effect upon the membership and associational activities of Climate Ground Zero and other environmental groups. Plaintiff states that it intends to use the information “to hold responsible those individuals who continue to defy the law.”

It would appear therefore that Plaintiff intends to sue other persons who assisted or participated with Defendants in the January, 2010, protest or encourage civil or criminal contempt proceedings against them for violation of State Court injunctions. Knowing that they might be sued or charged, many who support the positions of Climate Ground Zero and other environmental groups opposing mountaintop mining and would actively and lawfully protest it would not do so. Defendants have therefore stated a valid First Amendment claim such that the information which Plaintiff seeks is protected against disclosure under the First Amendment unless Plaintiff has demonstrated a compelling need for it.

Plaintiff does not need the information to prove its case, and Plaintiff has obtained some general information from other sources that others participated with and assisted Defendants in the January, 2010, protest. Plaintiff does not have a compelling need for the information, and the First Amendment privilege therefore prevails.