State Sen. Jason Rapert: Social media personal

Free speech not issue, judge told

Sen. Jason Rapert, R-Conway, is shown in this file photo.
Sen. Jason Rapert, R-Conway, is shown in this file photo.

In written responses filed Friday, attorneys for State Sen. Jason Rapert, R-Conway, expanded on their courtroom arguments that a federal judge should dismiss a lawsuit alleging the senator violated the First Amendment by blocking certain people from posting on his social media sites.

U.S. District Judge Kristine Baker heard oral arguments Jan. 15 on a request by the plaintiffs -- four individuals and American Atheists Inc. -- that she issue a preliminary injunction to force Rapert to restore their ability to comment on his Facebook page and Twitter feed.

Baker took the request under advisement and said she wouldn't issue a ruling until the attorney general's office, which represents Rapert in his official capacity, and Little Rock attorney Paul Byrd, who represents him in his individual capacity, had a chance to respond to the lawsuit allegations in writing.

Assistant Solicitor General Dylan Jacobs said in the state's 23-page written response that the plaintiffs "erroneously claim that they were blocked or banned from [Rapert's] personal social media accounts because of their views. In reality, they were blocked or banned from those accounts for abusing the privilege of accessing them. They claim this violates their First Amendment rights, but they have no First Amendment right to access anyone's personal social media accounts, including [Rapert's]."

Jacobs reiterated, "It makes no difference that, in addition to being a small business owner and ordained minister, [Rapert] is a part-time Arkansas legislator." He said the plaintiffs -- two Conway residents, a Rogers woman and a Maumelle woman, in addition to the New Jersey-based nonprofit corporation -- claim that because Rapert is a state senator, "he has forfeited the ability to manage his personal social media accounts and prevent disruptive commenters from having a heckler's veto."

Even more "startling," Jacobs said, the plaintiffs want the court "to issue a prior restraint on [Rapert's] ability to discuss his religion on his private accounts. That would clearly violate his First Amendment right to express his religious beliefs. Such a request is totally improper."

Byrd adopted the attorney general's response and agreed that "the court would have to violate Mr. Rapert's fundamental rights in order to enforce" the injunction.

"Mr. Rapert used the tools given to him by the social media platforms to prevent what he perceives as harassment," Byrd wrote. "To have the government step in and prevent Mr. Rapert from using those tools ... is an extreme overreach and unconstitutional."

Little Rock attorney Phil Kaplan, who is representing the plaintiffs, argued in the Jan. 15 hearing that Rapert's Facebook page "says it is a forum for constituents and citizens," and has far more participation than a regular Facebook account, with more than 24,000 followers.

Kaplan said a ruling earlier this month by the 4th U.S. Circuit Court of Appeals in Virginia and a district judge's ruling a year ago in New York found that politicians violate the First Amendment when they ban their constituents from official social media pages. The 4th Circuit case concerned the chairwoman of a county board blocking a critic on her official web page. In the New York case, which is on appeal to the 2nd U.S. Court of Appeals, a district judge ruled it is unconstitutional for President Donald Trump to block critics on Twitter.

Rapert's attorneys said the difference in those cases and the one before Baker is that Rapert "uses these accounts in his personal capacity; they are not, and have never been, official government accounts. [Rapert] uses them for personal use -- for his campaigns, his business, and his ministry."

Kaplan said the 4th Circuit held that actions are fairly attributed to the state when the sole intention of the official involved is to suppress comments critical of his public office.

"It is inconceivable to me that anybody could deny they are a public forum," he said of Rapert's Facebook and Twitter accounts.

Jacobs called the plaintiffs' complaints "unfocused" and wrote, "All of these scattershot claims fail at the outset because [Rapert] does not act under color of state law when managing his personal social media accounts -- a requirement for a constitutional violation."

He noted that the First Amendment "protects individuals against abridgments of their speech by the government, not against restrictions attributable to private action."

He said the 4th Circuit found that the chairwoman created the Facebook page "to further her duties as a municipal official" and used it "as a tool of governance," pointing out that the page lists her official county email address and the telephone number of her county office, and that she had submitted posts on behalf of the board as a whole and asked her constituents to use the page for "back and forth constituent conversations."

None of that is true of Rapert's accounts, the attorneys argued. They also noted that the Facebook page in Virginia and Trump's Twitter account were staff-managed, unlike Rapert's accounts, which he personally manages, even though members of his campaign helped manage his Facebook page when he was running for election

Metro on 01/29/2019

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