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. icon
    Boojum (profile), 26 Aug 2019 @ 9:56am

    First amendment does support anonymous criticism.

    I'm sorry, but the courts have often ruled that anonymous speech is protected, particularly in regards to the government and politicians. There is a case in the courts right now where an LDS member criticized the LDS church anonymously on Redit and the courts are taking steps to prevent him from being unmasked in the copyright case the LDS brought against him. The courts have said that the first amendment is not there just to protect the speaker, but to also protect the public's ability to hear what a speaker has said. That it not only applies to U.S. Citizens but to people in other countries, allowing U.S. citizens to hear what they have to say. They have already ruled that the chilling affects of unmasking an anonymous speaker prevents others from speaking, and thus falls under the first amendment.

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