Arkansas State Sen. Jason Rapert has lost yet another legal battle.
Back in 2018, American Atheists filed a lawsuit against Rapert — best known to readers of this site for erecting an unconstitutional Ten Commandments monument outside the State Capitol and threatening me for reporting on him — 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 in 2019. They said that Rapert didn’t really distinguish between his accounts the way he suggested and that he routinely conducted official business under his supposed personal accounts. (Donald Trump works the same way, for what it’s worth. All his notable tweets, even the political ones, come from the personal account.)
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.
Last year, U.S. District Judge Kristine G. Baker issued an 81-page order that went 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 said 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 came to monetary damages.
What did all that mean in English? The lawsuit was still ongoing. It wouldn’t be dismissed. But Rapert didn’t need to unblock anyone at the time. And even if the atheists won, they wouldn’t be getting any money out of him.
What about the plaintiffs still being blocked by Rapert?
“Judge Baker’s decision underscores the importance of taking immediate action when government officials block you on social media,” said [AA attorney Geoffrey] 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.”
Now we have a new update to this case.
Over the past year, Rapert has been trying to get this case thrown out of court using every excuse he possible count. But on all the salient points, Judge Baker sided with the atheists. This case still isn’t over, but it will eventually be decided on the merits, not tossed out on a technicality, and that means Rapert will likely lose.
American Atheists celebrated the latest results:
Judge Baker agreed with American Atheists on each and every argument Rapert raised in his motion. She ruled that two of American Atheists’ four plaintiffs are not barred by Arkansas’ three-year statute of limitations, since they “allege that State Senator Rapert continues to violate their First and Fourteenth Amendment rights.” Similarly, Judge Baker determined that American Atheists can sue on behalf of members who are not named as plaintiffs in the case. Finally, she ruled that American Atheists had properly notified Rapert that he was being sued in both his individual and official capacities.
“Jason Rapert’s legal arguments never held water, and now the court has told him so. Our clients are already preparing for their day in court, and I expect the court to ultimately grant us the injunction we are seeking. Rapert will have to respect the First Amendment rights of his constituents and of all Arkansans,” said Geoffrey Blackwell, Litigation Counsel at American Atheists.
It’s really such a small, petty thing for an elected official to fight over, but this is Jason Rapert. The only issues he cares about often involve silly culture war battles because he can’t be counted on to do big meaningful things while in office.
Instead of saying he’s sorry and fixing the problem, Rapert is basically 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.
Considering Rapert plans to run for Lt. Governor in 2022, citizens need to know about this narrow-minded religious bigot who will soon be clamoring for their votes. That way they can learn to stay the hell away.
Rapert hasn’t responded to this ruling yet, but reporter Max Brantley of the Arkansas Times had a theory about that: “No eruption from Rapert yet on Facebook, maybe because he’s too busy erupting about the U.S. Supreme Court, same-sex marriage and Planned Parenthood.”
(Large portions of this article were published earlier)