Attorney: Ban on Text App Violates Missouri Governor’s Speech Rights

After a lawsuit alleging Gov. Eric Greitens and his staff were violating public records law, his attorney is saying an order to stop using a private messaging app would violate his free speech rights.

by Jason Hancock, The Kansas City Star / February 1, 2018
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(TNS) — JEFFERSON CITY, Mo. — Ordering Gov. Eric Greitens and his staff to stop using an app that erases text messages would violate their free speech rights, attorneys for the governor argued in a brief filed Tuesday.

Greitens and his senior government staff use an app on their personal phones called Confide that erases text messages after they are read and prevents someone from saving, forwarding, printing or taking a screenshot of texts. Because the app is designed to eliminate a paper trail, it is impossible to determine whether the governor and his staff used it to conduct state business out of view of the public, or whether they’re using it for personal and campaign purposes.

Two St. Louis County attorneys filed a lawsuit late last month accusing Greitens and his staff of engaging in an ongoing conspiracy to violate Missouri’s open records laws by using Confide. And they’ve asked a Cole County judge to issue a temporary injunction blocking employees of the governor’s office from using the app.

A hearing on the injunction is scheduled for Friday at 1 p.m.

In the brief filed Tuesday, Greitens’ attorneys argue that blocking use of the app is improper because it would prevent the governor and his staff from using Confide to send “purely personal, non-work-related messages.”

“Such an injunction also would run afoul of these employees’ First Amendment right to freedom of speech,” the governor’s attorneys said.

Mark Pedroli, one of the attorneys who sued Greitens and co-founder of a group called the Sunshine Project, called the governor’s argument a “breathtaking endorsement of the use of Confide and message shredding software in general.”

He noted that White House staffers reportedly used Confide to keep their communications secret until former press secretary Sean Spicer explicitly banned its use, saying it was a violation of the Presidential Records Act.

“The governor’s office isn’t shutting down the use of this software, like Trump’s White House did,” Pedroli said. “Instead they’re actually advocating for the use and suggesting, incredibly, that government employees have a constitutional right to shred their communications with other government employees.”

The governor’s attorneys also argued that the lawsuit has no merit because Pedroli can’t produce any evidence that the app was being used to discuss public business. The lawsuit, Greitens’ attorneys say, is based on speculation and media reports.

The Star first reported last month that the governor and most of his staff have Confide accounts connected to their personal cell phones. In addition to the governor, those who had Confide accounts at the time include his chief of staff, deputy chief of staff, director of cabinet affairs, legislative director, deputy director of legislative affairs, policy adviser and press secretary.

Austin Chambers, who runs the governor’s political nonprofit, and Jimmy Soni, the governor’s former communications adviser who remains on Greitens’ campaign payroll, also had accounts.

The revelation led to Attorney General Josh Hawley’s office launching an investigation into whether the governor’s office was illegally destroying public records by using Confide.

That investigation, which is still ongoing, was launched Dec. 20. Two weeks later, the governor’s staff was instructed by its attorney not to “alter, shred, dispose of or otherwise destroy any records that relate to your official capacity with this office and the application Confide, the use of Confide or any application that does not retain messages.”

Greitens’ office has said it is confident the law was followed in regard to retention of public records.

In addition to his lawsuit, Pedroli also filed a records request with the governor’s office asking for dates on which Greitens and his staff downloaded Confide on their phones.

Greitens’ office declined to turn over the information, arguing that doing so would “impair the Office of the Governor’s Security Division’s ability to protect the governor and his staff.”

Pedroli dismissed that argument.

“Telling state residents when a text message shredder was downloaded on a phone doesn't make anyone less safe,” he said, “but it makes all of us less informed.”

Campaign for Accountability, a D.C.-based liberal watchdog organization, also filed a records request with the governor’s office regarding Confide. The group sought any records regarding office policies or guidelines for using text-destroying apps, but was told none exist.

“The absence of any official guidelines regarding the use of these apps suggests the governor is not taking the requirements of the Missouri Sunshine Law seriously,” said Daniel Stevens, executive director of Campaign for Accountability.

©2018 The Kansas City Star (Kansas City, Mo.) Distributed by Tribune Content Agency, LLC.