Hawley’s inquiry of Greitens questions whether social media should be in the sunshine | St. Louis Public Radio

Hawley’s inquiry of Greitens questions whether social media should be in the sunshine

May 7, 2018

It’s not every day that a sentence in a 14-month-old article is the catalyst behind an attorney general inquiry into a sitting governor.

But that’s exactly what’s happened in April, when an email sent to St. Louis Public Radio about a now-scuttled soccer stadium prompted Missouri Attorney General Josh Hawley to look again into Gov. Eric Greitens’ social media policies.

The move marks the latest chapter in the deteriorating relationship between Hawley and Greitens, as both GOP statewide officials seek to preserve their political prospects.

Kansas City Star reporter Tessa Weinberg has spent months looking into whether Greitens’ Facebook and Twitter accounts are open to Missouri’s open records laws. It’s a notable question, because Greitens  uses social media primarily to convey his official policy decisions. Hawley’s office initially concluded this year that the social media accounts are private.

But then Weinberg alerted Hawley’s office of a story this reporter wrote about Greitens’ sentiments toward a proposed St. Louis soccer stadium. That article included email from Greitens spokesman Parker Briden that contained a draft of a Facebook post that was never publicly released.

The reason Weinberg found that email notable is because Austin Chambers was copied on the e-mail. Chambers served as a key staffer on the governor’s campaign, but is not a member of Greitens’ staff. (Some reporters, including myself, thought he was part of Greitens’ official staff for awhile, which is the reason why I didn’t put two and two together at the time.)

In any case, Hawley’s office opened an inquiry into whether Greitens’ social media practices run afoul of open records laws.

“Based on new information that has been provided, we have opened an inquiry into this matter,” said Hawley spokeswoman Mary Compton. “If a state employee was, in fact, operating campaign social media accounts, the Sunshine Law may well apply to some or all of the records associated with that account.”

Briden said in an e-mail to St. Louis Public Radio that “the issue is settled.” He pointed to both the attorney general’s office prior reasoning and an opinion from Cole County Prosecutor Mark Richardson that Greitens’ office was not violating the Sunshine Law.

“Just as the DOJ has argued on behalf of President Trump with respect to his personal social media accounts, social media activity on personal accounts are not state action, the personal accounts are not public forums, and there is no basis for the state to regulate that activity or require it to be subject to the Sunshine Law or records retention laws,” Briden said.

A vexing question

Saint Louis University law professor Chad Flanders said that governments across the country are sorting through whether social media activity intersects with open records laws.

“I think it’s just keeping up with changes in social media,” Flanders said. “Because by now, most states have policies regarding e-mail. But OK, where do Facebook messages fit in? Where does Twitter fit in, in terms of both disclosing the records and having to keep the records?”

Flanders also said there’s legal controversies over whether public officials can block people from accessing their Facebook or Twitter accounts. That’s another issue that Weinberg has been following since last year.

“[The Internet is] where we have the robust debate where we talk about politics,” Flanders said. “It’s not in the park anymore. It’s not on the sidewalk. It’s on Facebook or it’s on Twitter. Then, it becomes more a question, ‘well, what is the obligation when the government sets up an official Facebook page or does sort of have town halls on their personal Facebook page?’”

That question is especially relevant for President Donald Trump, who is facing lawsuits over whether he should be allowed to block people from accessing his Twitter account.

Flanders said the outcome of that case could revolve around whether @realdonaldtrump is a “showcase for Trump when he tweets out” or if “Trump, as a government official, opening up a space for public debate?”

“That’s sort of what these lawsuits turn on,” Flanders said. “Because if it’s just like a showcase for Trump, then Trump really doesn’t have to open it up or let people comment or let people follow if he doesn’t want them to follow him. But it’s a forum for public debate, which is what a lot of these litigants are saying, then you’ve got to not block us. You’ve got to let us post on this because this is where our voices get heard or not heard.”

On the Trail, a weekly column, weaves together some of the intriguing threads from the world of Missouri politics.

Follow Jason on Twitter: @jrosenbaum