Does Missouri AG’s defense of GOP senators’ social media expose state to liability?

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Missouri Attorney General Andrew Bailey’s decision to defend three state senators who were sued for sharing false social media posts about the Kansas City Chiefs Super Bowl parade shooting could open taxpayers up to liability amid intense criticism from lawmakers of both parties.

Bailey’s representation has confounded legal experts who argue it could have far-reaching ramifications. It raises questions about whether lawmakers’ social media posts are official government business and whether lawmakers can be immune from lawsuits about their online behavior.

The biggest question for critics is why Bailey is using state resources to defend senators who allegedly defamed a private citizen. Some have floated the possibility of a potential ethics complaint against either the senators or Bailey.

“The attorney general’s argument may expose the state to more liability than it had before,” said Chuck Hatfield, a Jefferson City-based attorney who previously worked in the Missouri Attorney General’s Office.

The three lawmakers, Republican Sens. Rick Brattin of Harrisonville, Denny Hoskins of Warrensburg, and Nick Schroer of St. Charles County, were each sued last month for posts falsely claiming that Denton Loudermill, an Olathe native, was an undocumented immigrant and a shooter in the February shooting that killed one person and injured more than 20.

The lawsuit from Loudermill argues that the three senators were acting as private citizens when they made the posts. But Bailey’s office, in a court filing last week, argued that Brattin was acting in his official capacity and is protected by “absolute legislative immunity.”

Brattin’s post was directed at President Joe Biden and referred to border security concerns, the motion from Bailey’s office said.

“State legislators ‘should not be inhibited by judicial interference or distorted by the fear of personal liability when they publicly speak on issues of national importance,” the motion, which quoted prior case law, said.

The motion also argued that the lawsuit, filed in Kansas federal court, should be dismissed because the shooting, posts and Brattin himself were all based in Missouri.

“The State has an interest in ensuring that a remote federal district court isn’t the final say on interpretation of Missouri law,” Madeline Sieren, a spokesperson for Bailey, said in an email.

But legal and political experts who spoke with The Star raised doubts about whether courts agree that a lawmaker’s social media posts could be considered official business.

“I doubt that legislative immunity is going to apply here,” Hatfield said.

Michael Wolff, a former Missouri Supreme Court chief justice, said in an interview that the argument “might be a bit of a stretch.” He said Bailey could argue that he’s defending the senators out of an abundance of caution to protect them from being sued for commenting on issues of “legislative interest.”

“I guess the question is, if you’re on your way home from the Capitol and you get a DWI, are you legislating?” Wolff said. “Should you be either represented by the attorney general or be immune? I’m not sure.”

Bailey’s decision follows a lengthy list of actions that critics have questioned as the Republican has been accused of pushing to expand the powers of his office.

Bailey last year made an unprecedented attempt to overturn the conviction of the first white Kansas City police officer found guilty for killing a Black man. He also unsuccessfully attempted to use state law to effectively ban gender-affirming care for both adults and kids.

The Republican has also deployed a rarely-used procedure to try to oust four elected officials. Last year, he tried to circumvent Republican Auditor Scott Fitzpatrick to inflate the cost of an abortion rights ballot measure. And he’s wielded the office to file an onslaught of lawsuits against Biden and the federal government.

Missouri Republicans have not been quick to defend Bailey’s decision to represent the senators and some have sharply criticized the move. None of the three senators responded to requests for comment.

Sieren, in an email last week, pointed to the state’s legal defense fund, which lawmakers direct money to to defend state employees and elected officials from legal claims connected to their official duties.

The lawsuits against the Missouri senators came after an onslaught of false social media posts were shared with photos of Loudermill after the shooting. Loudermill also filed a nearly identical lawsuit against U.S. Rep. Tim Burchett, a Tennessee Republican, last month.

The Missouri lawmakers’ posts caused Loudermill to receive death threats, incur damages totaling more than $75,000, anxiety, and loss of sleep, according to the lawsuits, which accuse the senators of false light invasion of privacy. The lawsuits ask a judge to issue damages “to punish” or deter the senators and others from similar conduct in the future.

Another outstanding question is whether the senators’ social media accounts can be considered official business when all three of them also use the accounts to promote their campaigns. Missouri law bans the use of public funds for campaigning.

Brattin, in a sworn affidavit, argued that he published his social media post “while I was engaged in my regular duties as a Missouri State Senator.” However, Brattin’s X account also includes a link to his campaign website and the pinned post on his profile talks about an endorsement he received for his reelection campaign.

Peverill Squire, a political science professor at the University of Missouri-Columbia, said that the case raises some thorny legal questions about the differences between official and campaign business.

“The courts will have to sort this out and they’re not doing a particularly good job of it right now,” he said. “It is a serious question and it will, whatever the decision is, have real-world implications not just for these three lawmakers, but for any elected official in Missouri and probably feed into a national conversation as well.”

Elad Gross, who is running against Bailey as a Democrat, said in an interview that he’s heard rumblings about a potential ethics complaint that could be filed either against the senators or Bailey.

“It doesn’t make much sense why Missouri taxpayers are paying for these guys’ defense when it sure seems like they weren’t working in any kind of official capacity,” said Gross, a former assistant state attorney general.

Gross pointed to the senators’ use of their social media accounts to prop up their campaigns, saying they could in violation of state law if they’re arguing those accounts are for official business.

“Either these guys, the senators, have been violating our ethics rules in Missouri or the attorney general is by putting forth like a frivolous claim here,” he said. “It’s hard to tell which one it is.”

While he’s heard discussions about a potential ethics complaint, Gross said he was not sure how far along that process is.

For Hatfield, the Jefferson City-based attorney, the biggest question is why would Bailey represent the senators when the lawsuit was filed against them as private citizens.

“You have a lawsuit here that specifically says this was done in their (private) capacity,” he said. “So there’s no way you can get a judgment against the state.”

He suggested that Bailey’s decision could put the state at risk of liability.

“What is the state’s interest here? What is it the taxpayers can lose without the attorney general’s involvement?” he said. “Nothing.”