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How AG Schmitt's lawsuit is using the First Amendment to get to Dr. Fauci

Missouri Attorney General Erick Schmitt, standing at a podium in a blue suit.
Missouri Attorney General's Office
Missouri Attorney General Eric Schmitt

In one of several high-profile lawsuits targeting the Biden administration, Missouri Attorney General Eric Schmitt contends that Dr. Anthony Fauci and other government officials worked with social media companies to suppress misinformation about COVID-19 — and in a ruling last week, a federal judge approved depositions of the physician and others, including former White House press secretary Jen Psaki.

The ruling surprised attorney Nicole Gorovsky, who analyzed the case along with attorneys Connie McFarland-Butler and Bevis Schock on Wednesday’s Legal Roundtable on St. Louis on the Air.

“I'm frankly shocked that they got through to being able to even do these depositions,” said Gorovisky, a former prosecutor now at Jenkins & Kling.

There’s no evidence provided, she argued, that statements Fauci made about COVID-19, its origin and its spread were directed to social media companies as instructions for suppressing posts containing misinformation.

“They're saying that by Fauci saying things like, ‘This is how COVID happened,' and 'these are the facts about the science,’ that somehow that discouraged social media from allowing other voices. That is such a tenuous connection to actually colluding to suppress speech.”

St. Louis on the Air Legal Roundtable, left to right: Connie McFarland-Butler, Bevis Schock, Nicole Gorovsky.
St. Louis on the Air Legal Roundtable, from left: Connie McFarland-Butler, Bevis Schock, Nicole Gorovsky.

But the case doesn’t hinge on whether the information being spread is accurate or not. Bevis Schock, of Schock Law in Clayton, sees the possibility of depositions posing “a serious problem” for Fauci and the other officials, especially if the depositions uncover actual evidence to back up the lawsuit’s allegations of collusion, such as the allegation that the White House acted with Facebook’s Mark Zuckerberg to stop the spread of posts sharing the conspiracy claiming Fauci had a role in engineering COVID-19 in a Chinese lab.

“If the government engages in activity to stop media outlets from speaking, that's a First Amendment violation,” Schock told guest (and former) St. Louis on the Air host Sarah Fenske.

Even when the content of a social media post isn’t true, that doesn’t mean the First Amendment doesn’t protect it from censorship by the government. Schock noted, “The First Amendment protects lies.”

The lawsuit’s discovery process could go deeper than just depositions. Schock predicted, “The fact that [Schmitt’s] now gotten some permission to depose these people will probably not be as important as seeing emails.”

A judge’s order approving depositions of officials like Fauci or Psaki is rare, said Connie McFarland-Butler, a former partner at Armstrong Teasdale who now practices at her own firm, the Law Office of Connie McFarland-Butler.

“As a general rule, for high-ranking government officials, the courts don't allow them to just be deposed all willy-nilly, because they want the government to be able to function and for high-ranking government officials not to be tied up in discovery and depositions all the time.”

McFardland-Butler pointed out that federal Judge Terry A. Doughty, who issued the Oct. 21 ruling out of the U.S. District Court for the Western District of Louisiana, was appointed in 2018 by then-President Trump. “That may have played a role in this being able to move forward so quickly,” she said.

Also on the docket for the legal experts on Wednesday was a case of destroyed documents: While being sued over the treatment of pets at its animal shelter, St. Louis County admitted to shredding 20,000 pounds of records — and claimed it was needed because of rodent and insect infestation. The attorneys suing the shelter are outraged, but the county says it had no other option.

The panel also talked about letters sent by attorneys for Illinois Gov. J.B. Pritzker threatening to sue television stations that run a negative ad against his campaign. The letters assert that the claims in the ads amount to defamation and that, by airing the ads, the TV stations could be subject to legal action.

Two St. Louis cases also caught the panelists' attention: A jury delivered a $177 million civil judgment in a case of a woman assaulted in a hotel by a security guard who used the master key to get into her room. And St. Louis rapper 30 Deep Grimeyy went to trial this week on charges that he’s a felon in possession of a firearm. He claimed that these were props and that it was part of his art.

Listen to the full roundtable discussion below:

SLOTA Legal Roundtable tackles AG Eric Schmitt lawsuit, and more

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is produced by Miya Norfleet, Emily Woodbury, Danny Wicentowski and Alex Heuer. Avery Rogers is our production assistant. The audio engineer is Aaron Doerr.

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Danny Wicentowski is a producer for "St. Louis on the Air."
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