This was theft by conversion (or worse). There were no “free speech” issues here. I have a feeling the investigation will discover this was more than a case of a drunk Apple employee forgetting the iPhone in a bar.
I think for the possible criminal charges pertaining to the left (however you wish to characterize that theft), and the possible receipt of stolen property on Gizmodo's behalf, you're absolutely correct.
What's interesting - and I'm not a 1st Amendment atty - is how a guilty conviction might strip Gizmodo from their 1st Amendment protections from that 2001 SCOTUS case.
In a normal world, even if trade secrets are stolen and then published by a media outlet, the media outlet can't be sued for damages based on the trade secret infringement. BUT, what happens if the media organization is found to be an accessory after-the-fact with respect to that left? Will they be allowed to profit from that left and do they bear any liability for damages suffered by Apple because of that loss?
Probably nothing comes of it, but Jobs (who LOVES to be the guy who unveils their new products) is known to be a vindictive little *^&^&. If anyone and any company would push the envelope, it might be Apple & Jobs.