Last year, American Atheists filed a lawsuit against Arkansas State Senator Jason Rapert — best known to readers of this site for erecting an unconstitutional Ten Commandments monument outside the State Capitol — for blocking four residents on Facebook and Twitter.
You can read more details about the case here, but Rapert’s defense boiled down to the idea that he’s blocking them on his personal accounts, not his official government ones. (See?! He’s not doing anything illegal!)
American Atheists took issue with that response earlier this year. They said that Rapert didn’t really distinguish between his accounts the way he suggested, and that he routinely conducted official business under what he said were his personal accounts.
That’s why AA asked the judge to ignore Rapert’s motion to dismiss their case.
Senator Rapert presents the Accounts to the public as ones that he operates in his official capacity… His Facebook page states: “This page is for communication with [constituents] and citizens”… The Twitter page associated with the account is registered to “Sen. Jason Rapert.” and links to Rapert’s official profile on the Arkansas State Senate’s website.
Senator Rapert offers and uses the Accounts as forums for discussion and debate about community events, as well as his policy positions and official acts… Therefore, the Accounts are instruments of his Arkansas Senate office, like digital town hall meetings where individual users receive information about Arkansas government and exchange their views on matters of public concern… On the Accounts, Senator Rapert communicates with his constituents, promotes businesses and events in his district, honors the accomplishments of constituents, informs users about government job openings in his district, delivers safety messages, and performs other duties intrinsic to his role as a state legislator…
AA’s president was far more blunt about what all this meant:
“Rapert is either incredibly incompetent or intentionally misleading the court when he claims he’s using social media for personal use only,” said American Atheists President Nick Fish. “Anyone who spends more than 30 seconds on Rapert’s social media accounts can see that he uses them for official purposes.”
In a separate request for a preliminary injunction, AA also argued they were likely to win this case on the merits and they wanted the judge to act so their clients could keep tabs on what Rapert was doing as an elected official.
U.S. District Judge Kristine G. Baker has now issued an 81-page order that goes both for and against the atheists. Because they alleged so many legal violations by Rapert, the judge went through all of them, saying they had a valid argument in some cases but not others.
For example, was Rapert wearing his hat as an elected official when he used those social media accounts? He says no, they’re personal accounts, but the judge said the atheists had good reason to believe they were his professional ones.
Here, even though some facts weigh in favor of finding that State Senator Rapert’s use of his social media accounts was personal, based on the totality of the circumstances and considering the precedents, the Court determines that plaintiffs have a fair chance of prevailing on their argument that State Senator Rapert acted and continues to act under color of state law when operating the relevant social media accounts.
The judge also said the atheists had a “fair chance of prevailing” when it came to the issues of whether they were engaged in protected speech under the First Amendment, “public forum analysis,” and Rapert’s social media accounts being “under government control or ownership.”
On the other hand, the judge said there wasn’t enough evidence that Rapert blocked them because they were atheists (free exercise claim) and that the evidence was “slightly in State Senator Rapert’s favor” on the preliminary injunction issue.
Finally, the judge granted Rapert qualified immunity when it comes to monetary damages.
What does all that mean in English? The lawsuit is still ongoing. It won’t be dismissed. But Rapert doesn’t need to unblock anyone just yet. And even if the atheists win, they won’t be getting any money out of him.
“Rapert has repeatedly called our lawsuit against him ‘frivolous.’ Today’s decision should put an end to that ridiculous claim,” said Geoffrey Blackwell, Litigation Counsel at American Atheists. “The Arkansans Rapert has blocked will get their day in court, and we have every confidence we’ll prevail.”
What about the plaintiffs still being blocked by Rapert? Blackwell said it was a teaching moment:
“Judge Baker’s decision underscores the importance of taking immediate action when government officials block you on social media,” said Blackwell. “Hopefully, Senator Rapert sees the writing on the wall and chooses to stop censoring people who disagree with him. But I’m not holding my breath.”
I asked Rapert what he thought of this decision, and his response was predictable: “I have just begun to fight. We will be victorious against this frivolous lawsuit.”
Maybe he will be. But he wanted this lawsuit tossed out entirely, and it wasn’t. So he’ll have to keep fighting.
Regardless of how this lawsuit plays out, instead of saying he’s sorry and fixing the problem, Rapert is holding his breath in a fit of rage until a judge makes him do the right thing.
Arkansas citizens deserve better representation than that. They deserve someone who doesn’t use his public platform to advance his private religious agenda.
(Large portions of this article were published earlier)