MO AG Bailey touts himself as a free speech defender. Does his record tell a different story?

On the Fourth of July, Missouri Attorney General Andrew Bailey went on social media and touted himself as a defender of free speech.

A federal judge had just ruled in favor of a lawsuit that Bailey’s immediate predecessor, Republican Sen. Eric Schmitt, had filed alleging that the White House violated the First Amendment by working with social media companies to suppress conservative speech.

“My office is doing everything it can to protect Missourians’ right to free speech from the largest First Amendment violation in American history,” Bailey posted on Twitter after the judge issued an injunction against the Biden administration.

But while Bailey promotes himself as a champion for free speech, the Republican attorney general’s defense of the First Amendment has been selective. In both his time as attorney general when he has tried to crack down on drag shows and while working in his previous job as Gov. Mike Parson’s top lawyer during which he drafted talking points to try to prosecute a reporter, Bailey has taken steps to curtail speech when it does not align with his conservative views.

Bailey has shown a specific pattern of working to curb speech from and in support of the LGBTQ community while at the same time using the First Amendment to defend those who refuse service to the community.

“It’s a lack of consistency — He’s a defender of free speech that he likes, but he’s certainly willing to try to shut down speech that he doesn’t like,” said Chuck Hatfield, a Jefferson City attorney who worked in the attorney general’s office under Democrat Jay Nixon.

A day after the judge ruled in the social media case, Bailey signed onto a letter led by Indiana Republican Attorney General Todd Rokita warning Target that the LGBTQ-themed merchandise it sold during Pride Month may violate child protection laws.

Walter Olson, a senior fellow at the Cato Institute, a libertarian-leaning political think tank in Washington, D.C., took notice of this, writing last week that the letter was an “effort to chill the retailer’s liberty to engage in conduct protected by the First Amendment.”

Olson then went a step further and specifically called out Bailey.

“In a piquant juxtaposition, Andrew Bailey, the attorney general of Missouri, took a victory lap after his state won a favorable ruling in the social media case, only to turn around the next day and appear as a signatory of the Rokita letter,” the analysis said. “It all depends on what level of government is doing the browbeating to accomplish the takedown, doesn’t it?”

Bailey spokesperson Madeline Sieren in an email to The Star described Bailey as a “staunch defender of the First Amendment.”

“In addition to obtaining a court order halting what a federal court described as the most massive attack on the First Amendment in United States history, General Bailey has filed brief after brief supporting the First Amendment rights of Americans across the nation,” Sieren said.

When asked about Bailey’s differing approaches to the First Amendment, John Hancock, a former chair of the Missouri Republican Party, said in an interview with The Star that “cultural issues are supreme right now in Republican politics.”

“I think it’s really as simple as he is on the frontlines of fighting the culture war and in today’s Republican politics, that makes good political sense,” he said.

But the Target letter was not the first time Bailey has pushed efforts to curb free speech while at the same time touting the First Amendment in other cases.

In his first month in office, he sent letters floating potential legal action to Columbia school and city leaders after students were reportedly in attendance at a drag show performance, saying he was committed to “ensuring that our school system is educating, not indoctrinating children.” Performers at the show later pushed back, saying that nothing explicit happened.

Months later, Bailey signed onto a brief arguing that the First Amendment protected a Colorado baker who refused to bake a cake for a same-sex couple. The Republican argued that “Americans enjoy the right not to speak as much as they enjoy the right to speak.”

Bailey, who is adamantly opposed to abortion, has also been accused of derailing direct democracy by deliberately delaying a proposed statewide ballot measure to restore abortion rights.

“That is the ultimate First Amendment right, the right to petition your government for changes to your law,” Hatfield said. “And the attorney general knows he’s standing in the way of that proposal and I think he’s doing it intentionally.”

Before becoming attorney general, when he was working as Parson’s general counsel, Bailey helped draft talking points that the governor used to argue that St. Louis Post-Dispatch journalist Josh Renaud should be prosecuted for uncovering a security flaw on the Missouri Department of Elementary and Secondary Education website.

Parson’s effort to prosecute the journalist was roundly criticized by free press advocates and the Cole County prosecutor declined to pursue charges against Renaud.

Peverill Squire, a political science professor at the University of Missouri-Columbia, said the only way to reconcile the discrepancy in Bailey’s varying approaches to the First Amendment is to view him as a candidate running in a Republican primary.

“He will take high profile positions that reflect sort of what he thinks are the preferences of conservative voters,” he said. “He’s sort of less concerned, if he’s concerned at all, with trying to reconcile those things to make them ideologically consistent.

Bailey, who was appointed to the position and not elected, has taken steps to expand the powers of his office over the last year. That approach comes as he seeks election to a full term in 2024, facing a Republican primary challenger in former Assistant U.S. Attorney Will Scharf.

It’s not uncommon for a statewide attorney general to use the office to launch lawsuits and draft letters that might appeal to the conservative base. Bailey’s predecessors, Sens. Schmitt and Josh Hawley, both used the attorney general’s office as a pathway to the U.S. Senate.

Sieren, in the email defending Bailey, cited five examples of his support of the First Amendment, ranging from a brief Bailey signed onto defending a Louisville photographer who declined to take custom photos at a same-sex wedding to another brief he led that defended two employees who sued Springfield Public Schools over mandatory diversity training.

“Attorney General Bailey has proven that he can defend the First Amendment, protect children, and hold companies to their fiduciary duty all at the same time. He will continue to fight for all Missourians in the days ahead,” she said.

The Target letter that Bailey signed onto accused the company of selling merchandise “potentially harmful to minors” that interfered “with parental authority in matters of sex and gender identity, and possible violation of fiduciary duties by the company’s directors and officers.”

Bailey, in a press release last week, said he was putting Target “on notice.”

“Corporations have taken a hard-left turn to force a woke ideology onto families rather than protect children, and Missouri isn’t going to stand for it,” he said. The Republican attorney general went on a conservative talk show the same week and said that “too many in corporate America have chosen a side in this culture war.”

“Show me one instance in which Target has sold an article of clothing that had a Bible verse on it or that had the text of the Second Amendment in support of the NRA?” he said on the show.

Geoff Gerling, a former executive director of the Jackson County Democratic Committee, said he had the same view on the Target letter as the Cato Institute or “any other true classical conservative or libertarian.”

“This is government telling a corporation, a private corporation, what they can or cannot do based on their own personal political beliefs,” he said.

Olson with the Cato Institute, in his analysis last week, pointed out that what people think about Target’s Pride merchandise is not the issue. At its core, he wrote, it’s a matter of protected speech.

“Whether you consider the bibs and tote bags cute or cringe is neither here nor there,” he wrote. “Let’s instead cut to the legal chase: inasmuch as they send a message by displaying controversial words and symbols, they are plainly speech for First Amendment purposes.”

John Lamping, a former Republican state senator, in a phone interview with The Star, said he agreed that Target should be able to “sell what they want to sell.”

“You can choose not to buy it or you can choose not to shop there,” he said. Lamping said his family stopped shopping at Target. He has endorsed Scharf in his primary campaign to oust Bailey.

The Republican former state senator said many of the cases that Bailey has been involved in are unique situations and it’s not uncommon for cases that attorneys general pursue to appear political.

“It’s no secret Andrew Bailey is running for office,” he said. “It does make political sense to try to strike a fire on all these different issues that you know, in this example, Republican primary voters may find of interest.”

State Sen. Denny Hoskins, a Warrensburg Republican who is running for Missouri secretary of state in 2024, said every attorney general has to be selective in deciding which cases to pursue. Bailey, he said, has to decide which cases he can win.

“Bailey, although he was appointed to the position, he has come out and he’s been a conservative voice, obviously, he is going to pursue cases that he feels very strongly about,” he said.

Gerling was more critical, saying that attacks on the media, abortion rights and the LGBTQ community are popular among conservative voters.

“For both sides, much more on the Republican side than the Democratic side, it’s free speech if you agree with it. It’s hate speech or propaganda if you don’t,” he said.