Missouri Attorney General Eric Schmitt has cited the First Amendment in an attempt to block release of certain records in a lawsuit against a state legislator in southeast Missouri.
Schmitt, whose office enforces the state’s Sunshine Law, made the argument in a brief last week. The attorney general has yet to rule on another matter involving this unusual invocation of the First Amendment: a request by Missouri Auditor Nicole Galloway to determine whether Gov. Mike Parson illegally used it to withhold information from public records.
Chris Nuelle, Schmitt’s spokesman, says the two issues are not related — that one involves involves discovery in a lawsuit, the other information redacted under the Sunshine Law. The argument in the lawsuit, Nuelle said, should not be construed “as a preview of what may or may not come.”
But transparency advocates contend that’s a distinction without a difference. The AG is using the exact same argument as Parson used to withhold records, they say, and that’s a worrisome sign.
“The attorney general’s office, which has said it hasn’t had time to respond to the auditor’s direct question, is now trying to employ the First Amendment as a discovery defense, which is absolutely ridiculous,” said David Roland, director of litigation with the libertarian nonprofit Freedom Center of Missouri. “And if they are advancing this argument in an actual court case, it seems as though they’ve made up their mind.”
Schmitt’s use of the First Amendment stems from a lawsuit filed last year by former Scott City Mayor Ron Cummins that accuses Republican state Rep. Holly Rehder of defaming him while he was in office.
Cummins’ attorney requested communications from constituents making complaints to Rehder’s office.
Schmitt’s office, which is representing Rehder, argued last week that turning over those records would “violate the First Amendment rights of the constituents that made complaints.”
The attorney general’s spokesman previously told The Star that its policy differs from Parson’s in that personal information, like email addresses or phone numbers, is redacted only when there are extenuating circumstances — such as to protect a whistleblower or as part of an ongoing investigation.
Nuelle said that internal policy remains unchanged.
Mark Pedroli, the founder of the Sunshine and Government Accountability Project, called the AG’s use of the First Amendment in the lawsuit “another example of the rampant lawlessness infecting our state, and another step toward blackbox government.”
“If the top law enforcement official of the state, a political appointee of the governor no less, is unwilling to enforce the laws of the state and the state constitution,” Pedroli said, “we’re all in serious trouble.”
Jean Maneke, attorney for the Missouri Press Association, said the attorney general’s office cited no case law to support the argument in the Cummins suit, “because there is no case law to support that argument.”
“There is no legal argument under the Sunshine Law that the First Amendment allows for the closure of records by a government official,” Maneke said.
Galloway, a Democrat running for governor in 2020, asked Schmitt in May to determine whether Parson’s use of the First Amendment to redact information from public records is a violation of the state’s Sunshine Law.
The First Amendment protects freedoms of speech, religion, assembly, the press, and the right to petition.
The governor’s office defended the policy, saying citizens would not reach out to their elected officials if they believed information like email addresses and phone numbers could become public.
The Star first reported on Parson’s use of the First Amendment to redact information from public records in April.
Transparency advocates contended that the move was a clear-cut violation of the state’s open records laws that could shield the actions of lobbyists and other special interests from public scrutiny.
Daxton Stewart, a journalism professor specializing in media law at Texas Christian University, said it is “misguided” to assert that the First Amendment somehow provides shield from disclosing what the Sunshine Law otherwise demands must be released.
“The First Amendment protects a citizen from being punished by the government for their speech, but it doesn’t protect said speech or information about the citizen from disclosure,” Stewart said. “There’s not a court opinion I’ve ever seen that could be cited for that point.”