10/11/2011 03:49 pm ET Updated Dec 11, 2011

The Poisoning of Justice

Two weeks ago I stood in a long line waiting to get into a hearing in Charleston, West Virginia contesting a $35 million settlement in a case in which Rawl Sales, a Massey subsidiary, allegedly poisoned the water of 700 residents for scores of years. I've been down there talking to these people for my book The Price of Justice, and their stories of disease are staggering. This law suit has dragged on for years. Over that time many people have died or have grown sick.

As happens in many civil settlements, the terms were supposedly confidential, but how can they be confidential when hundreds of people know the figure? Nobody is ever satisfied with a financial settlement, but the complaints I was hearing went far beyond that. Some of the residents of Rawls charged that a hundred of the plaintiffs should not have been plaintiffs at all. Many of them did not even live in Rawls and had supposedly gotten sick on a visit or two back to the old home state. These same people alleged also that the very terms of the agreement and the contingent payment had changed, and they showed me a document signed by one of the members of three judge panel appointed by the West Virginia Supreme Court that appeared to show that.

I did not know the truth. It was possible they were exaggerating or had misunderstood. I welcomed the chance to sit in the courtroom and hear the complaints and how the lawyers and judges responded. But before I got up to the metal detector, Jennifer Bundy, the public information officer from the West Virginia Supreme Court, pulled me out of line and told me this was a closed hearing and everything that went on inside was confidential. To give her a tiny hint of what the First Amendment is all about, I stood in front of her interviewing a number of plaintiffs who were only too willing to talk about the settlement. And I told her there was no way the West Virginia Supreme Court was going to be able to hide what went on inside that courtroom.

Afterwards I went down to Rawls and talked to a number of the plaintiffs about what had gone on in the daylong session. All kinds of serious charges were made. At one point a lawyer allegedly got up and said that the hearings should be open and the press should be present.

Last weekend I contacted two of the top First Amendment attorneys in the United States. They both said that the gag order was unconstitutional. It might be in order for the West Virginia Supreme Court to take some time off and read the Constitution of the United States, a document about which several of them seemingly have only passing knowledge.