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Reporters Committee urges federal court to open Wisc. political speech dispute

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The Reporters Committee for Freedom of the Press and four media organizations on Thursday asked a Wisconsin federal court to…

The Reporters Committee for Freedom of the Press and four media organizations on Thursday asked a Wisconsin federal court to unseal records in a civil suit that alleges that the state misused an investigatory tool to retaliate against perceived political adversaries.

The underlying case alleges that the so-called John Doe proceeding was used by state prosecutors to chill conservative speech and to drum up Democratic opposition to Wisconsin’s Republican governor, Scott Walker. One of the conservative targets has challenged the state’s investigation in federal court.

The media coalition argues that the federal case must be open.

The federal case stems from state investigations of conservative groups for potential violations of campaign-finance laws. One of the groups, Wisconsin Club for Growth, and its director, Eric O’Keefe, sued a handful of state prosecutors in the U.S. District Court for the Eastern District of Wisconsin in February for civil-rights violations.

In O’Keefe’s federal suit, many details about the state “John Doe” probe are under seal or heavily redacted. Under Wisconsin law, John Doe proceedings let prosecutors conduct investigations in secret before a judge instead of a grand jury. John Doe judges, unlike grand juries, are allowed to impose gag orders over witnesses.

The media coalition argues that the state gag order does not require the federal court to seal records without first making specific findings about why the strong presumption of openness should be defeated.

“That the John Doe judge deemed the entirety of the proceeding before him ‘secret,’ however, does not relieve this Court of its independent obligation to determine whether sealing the record in this separate lawsuit is warranted,” the coalition argued.

The media group argues that the filings in the federal case, O’Keefe v. Schmitz, should not remain sealed because John Doe proceedings are presumptively open under both federal and state law, and because public scrutiny poses no threat in this matter. Moreover, the motion argues that openness is especially important here because of the nature of O’Keefe’s suit, which alleges abuse of a judicial procedure by public officials.

Two law firms, Baker Botts LLP and Gibson Dunn & Crutcher LLP, are representing the media coalition pro bono. The other intervenors are the American Society of News Editors, Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council, and Wisconsin Newspaper Association.

About the Reporters Committee

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.