Scott City lawsuit causes dust-up over First Amendment and discovery, attracts statewide attention

Missouri Assistant Attorney General Katherine S. Walsh, representing local state Rep. Holly Rehder, withdrew her response Tuesday afternoon originally asking the court to block the release of names because of concerns about First Amendment infringement.

The withdrawal came as the request gained statewide interest from the Kansas City Star and The Associated Press. It also put the local case in the crosshairs of a larger legal and political battle between the two leading contenders for governor.

According to the Kansas City Star’s reporting, Missouri Attorney General Eric Schmitt had argued in a Scott City lawsuit the First Amendment allows him to withhold records requested by the plaintiff’s attorney. The lawsuit initially was filed by former Scott City Mayor Ron Cummins in August 2017, after Rehder called for an investigation into allegations he abused his position.

Cummins later dropped his defamation lawsuit before filing a new but similar suit last fall against Rehder; Councilman and former Mayor Tim Porch; and Scott City resident Cindi Davidson Brashear.

As part of discovery, Cummins asked Rehder to produce the names and contact information of people with whom she corresponded regarding Cummins’ behavior. The AG’s office argued releasing the information would have a chilling effect on a person’s willingness to correspond with public officials, essentially reducing a person’s ability to petition the government, one of the rights guaranteed in the First Amendment.

The request was similar to one made by Republican Gov. Mike Parson, which has also garnered statewide media attention. Missouri Auditor Nicole Galloway, a Democrat, who is running for governor, had previously asked Schmitt’s office to rule whether Parson illegally cited the First Amendment to redact certain information from public records, according to reporting by various news outlets. Schmitt had not issued a ruling when his office made the argument in Rehder’s case.

The governor’s office has argued citizens would not contact elected officials if their information could become public, The Associated Press reported. Transparency advocates argue withholding the information violates the state’s open records laws and could shield lobbyists and other special interests from public scrutiny.

Chris Nuelle, Schmitt’s spokesman, told the Kansas City Star the two issues are separate because one involves discovery in a lawsuit and the other pertains to information redacted under the Sunshine Law. He said Schmitt’s argument in the now-withdrawn legal brief should not be considered “a preview of what may or may not come.”

Jean Maneke, attorney for the Missouri Press Association, noted the attorney general’s office cited no case law to support his argument in the lawsuit because no such case law exists.

“There is no legal argument under the Sunshine Law that the First Amendment allows for the closure of records by a government official,” Maneke told the Kansas City Star.

And Daxton Stewart, a journalism professor specializing in media law at Texas Christian University, said it is “misguided” to claim the First Amendment allows the withholding of information the Sunshine Law otherwise requires to 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 told the Star. “There’s not a court opinion I’ve ever seen that could be cited for that point.”

As for the local case, attorney J.P. Clubb, who represents Brashear, said his client “is a private citizen, and Ron Cummins is suing her because he doesn’t like her politics.”

He said, “Mrs. Brashear has voiced her opinion about the way Scott City government operates, and she is perfectly free to do so. Our First Amendment guarantees her the right to support and advocate for any persons or issues she chooses.

“The First Amendment protects citizens from being limited or punished by the government for what they express,” Clubb said. “What the First Amendment does not do, is allow elected officials to hide behind it and prevent all Missouri citizens from knowing who is contacting and meeting with our elected officials. Such an interpretation is a perversion of the Missouri Sunshine Law. It is unbelievable that the Missouri Attorney General has not quickly and decisively stated that Missouri governmental bodies and officials cannot subvert the First Amendment to hide this information, let alone attempt to use it to hide information in a court case.”