Missouri Attorney General Claims The First Amendment Allows Him To Withhold Public Records

from the I'm-not-familiar-with-the-type-of-thing-I'm-seeing dept

Missouri's government is flexing the weirdest right now. The state's Attorney General is currently in court trying to keep public records out of the public's hands. This doesn't actually stem from a public records lawsuit, but from a discovery request in a defamation lawsuit filed by a former mayor against a state representative.

Ex-Scott City mayor Ron Cummins is suing state rep Holly Rehder for defaming him while he was still in office. His discovery request has been greeted with this baffling assertion by the Attorney General. (h/t Peter Bonilla)

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.”

That's… not something the First Amendment protects. It protects their right to make complaints, but doesn't protect the state's right to withhold documents. In fact, the state has no First Amendment rights. Those belong to the people, like those Schmitt disingenuously is pretending to shield from someone suing a politician over allegedly-defamatory statements.

The governor's office backed this dubious assertion by saying something weird about chilling effects.

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.

I don't think that's how this works. For one, most people realize that communicating with government entities turns those communications (in most cases) into public records. For another, citizens cannot create chilling effects. Some people may be wary of communicating with the government for many reasons, but if there's any chill, it comes from the government's obligations to the public, not from public records requests.

That the governor would back this baffling gambit isn't surprising considering the governor himself has some pretty strange ideas about how the First Amendment works. This happened earlier this year:

As state lawmakers continue their push to carve out new exemptions in Missouri’s open records laws, Gov. Mike Parson has seized on a new strategy.

His office is redacting information from public records citing the First Amendment of the U.S. Constitution.

TIL: those black markers are called "First Amendments."

Steele Shippy, Parson’s communications director, said the office uses the First Amendment to redact telephone numbers, addresses and email addresses of private citizens who have reached out to the governor’s office.

Such is the state of the First Amendment in the Missouri state government. The First Amendment gets used to withhold public records and make unjustifiable redactions. And then I guess it gets put back in the drawer until the next time the government needs to use the First Amendment for something. The same incomprehensible claims were made about the chilling of speech in this case, too.

There is some good news, though. The state AG has officially withdrawn his insane First Amendment assertions.

Missouri Attorney General Eric Schmitt has withdrawn a legal brief he filed arguing that the First Amendment allowed him to withhold some public records concerning private citizens involved in a lawsuit.

Schmitt said in a statement Tuesday that his office determined after further review that the assertion should be withdrawn.

"Upon further review" says the AG, implying it ever received a first one. As was pointed out by people who actually understand the First Amendment, the legal brief cited no case law to support this peculiar free-speech-by-redaction argument because no such case law exists. Perhaps the AG should rush these findings to the governor's office before any more public records are subjected to the state's First Amendment scalpel.

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Filed Under: 1st amendment, attorney general, discovery, eric schmitt, holly rehder, missouri, public records, ron cummins, transparency


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  1. identicon
    DocGerbil100, 26 Aug 2019 @ 4:21pm

    Hello, Mr Cushing. :)

    Interesting article, even if - as with others - I disagree a little with your take on it. I absolutely love the comments on it, though. From here onward, any time I see yet another as-yet-unflagged troll comment claiming TD is nothing more than an echo chamber, I shall think of this article - with TD's own regular commenters cogently arguing against the TD interpretation, in large part, submitting evidentiary quotes and links to support their views.

    Critics may carp as they like, but this seems like proof that there really isn't any kind of "Cult of Masnick" - that's the alt-right projecting their own piss-poor standards of belief and fellowship onto others. TD's commenters are here through shared and often passionate interests in tech, media and free speech - but we're not uniform in our thinking and we're nobody's blind zealots. We're better than that.

    Today's evidently been a good day for an argument. Shame I missed it. Still, at least I have coffee, whiskey and biscuits to end the day with. Cheers, one and all. :)


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