First Amendment challenge to search-warrant gag order

|The Volokh Conspiracy |

From Wiesmueller v. Nettesheim, an interesting opinion handed down last week by a federal district judge in Wisconsin (some paragraph breaks added):

The pro se plaintiff, Christopher L. Wiesmueller, is a lawyer. The defendant, the Honorable Neal P. Nettesheim, is a former Wisconsin Court of Appeals judge. Post-retirement, Judge Nettesheim was the presiding judge in John Doe investigation Case No. 10JD000007 (Milwaukee County Circuit Court), commonly known as "John Doe I." On December 4, 2011, Judge Nettesheim issued a search warrant for Wiesmueller's law office. The search warrant included a gag order that prohibited Wiesmueller from discussing the warrant with anyone but his own legal counsel. John Doe I is now closed. Wiesmueller was not charged with a crime….

As to [his] First Amendment claim, Wiesmueller seeks declaratory relief that Judge Nettesheim cannot maintain a secrecy order on an ongoing basis, and in the alternative, an injunction against the continuing effect of the secrecy order…. [T]his claim presents a live controversy because Wiesmueller is forever barred from speaking about the matter….

Judge Nettesheim argues … that the Court should defer to the state courts (i.e., to him) regarding what documents should or should not be disclosed in connection with John Doe I. This argument misses the mark because Wiesmueller isn't trying to secure the release of documents gathered in the course of the John Doe investigation.

Instead, Wiesmueller wants the secrecy order to be lifted so he can speak about his own experiences with the investigation. The Seventh Circuit sidestepped this issue in [the earlier O'Keefe case] ("no one has challenged [the gag] order, and we do not address its propriety"), but the Court will take it up here to the extent that it will require further briefing from the parties on the issue. The briefing should consider the following.

While the Seventh Circuit in O'Keefe was presented with an active John Doe investigation, there is no active John Doe before this Court. It is no more; the investigation has closed.

Are not any orders issued in connection with that investigation now without force and effect? Given the pleaded facts of this case, is it even necessary for Wiesmueller to seek relief from a secrecy order which expired upon the conclusion of the John Doe? In other words, given the overriding constitutional protections of the First Amendment, can a secrecy order, which is only allowed to impinge upon Wiesmueller's fundamental First Amendment rights on the grounds that it promotes the effectiveness of a John Doe investigation, remain in force when the purpose for the infringement no longer exists? Hasn't the limited justification for infringing Wiesmueller's First Amendment rights evaporated with the conclusion of the John Doe, and aren't Wiesmueller's First Amendment rights restored to the extent that any prior restraint is without current effect?

Therefore, as indicated the Court asks the parties to brief why, given the pleaded facts of this case, the Court should not declare that Wiesmueller is entitled to relief from an order that is now without legal effect and constitutionally proscribed.