Three Arkansans testified Tuesday that they have been unconstitutionally deprived of participating in a public forum since Sen. Jason Rapert, R-Conway, blocked them from his Facebook and Twitter accounts in response to critical postings they made three or four years ago.
As the second day of the 2019 legislative session began just a few blocks to the west, Karen Dempsey of Rogers, Catherine Shosone of Maumelle and Robert Barringer of Conway all testified in the federal courtroom of U.S. District Judge Kristine Baker, who they are asking to order Rapert to unblock them.
While they -- along with Betty Jo Fernau, also of Conway, and American Atheists Inc. -- say Rapert's actions constitute viewpoint discrimination, in violation of the First Amendment, attorneys for the state lawmaker say the complainers have no First Amendment rights to access his personal social media platforms.
Baker listened Tuesday to about three hours' worth of testimony and arguments before saying she would take the request for a temporary restraining order and a preliminary injunction under advisement. She said she wouldn't issue a written ruling until attorneys for Rapert have two weeks to respond in writing to a lawsuit the individuals and organization filed Jan. 8.
The lawsuit was originally filed Oct. 2, but it was withdrawn and refiled last week after the plaintiffs' first attorney failed to serve the defendants in the designated time period and they hired a new attorney, Phil Kaplan of the Williams & Anderson firm in Little Rock.
Neither Rapert nor Fernau attended the hearing Tuesday.
Rapert is being personally represented by Little Rock attorney Paul Byrd, while the attorney general's office is representing him in his capacity as a state legislator.
In a motion to dismiss the lawsuit, Byrd said Rapert is a private citizen and part-time legislator, and like many private citizens, maintains several social media accounts. He "owns and maintains these accounts in his personal capacity; they do not belong to the State or any State entity," the motion said.
Similarly, Assistant Solicitor General Dylan Jacobs argued that Rapert is not only a legislator, but a civic-minded private person and an ordained minister.
"His social media accounts are controlled in his capacity as a private citizen," Jacobs said, noting that Rapert has had his Facebook page since before he was elected to office, and that it carries a disclaimer that anyone who engages in bullying or personal attacks will be blocked.
Jacobs said the facts in Rapert's case don't match those in a case decided just last week by the 4th Circuit on appeal from a federal court in Virginia. The appellate court said politicians violate the First Amendment when they ban their constituents from official social media pages.
That was the first ruling on the topic by a U.S. appeals court, but a year ago, a federal judge in New York said it was unconstitutional for President Donald Trump to block critics on Twitter -- a decision that is on appeal.
In both cases, Jacobs noted, the social media accounts in question were staff-managed, while Rapert manages his account himself. He said the posts in the other cases were made on behalf of a public entity, while Rapert doesn't post on behalf of the Senate.
"There is simply no evidence that Jason Rapert is acting as a state actor when he tweets or posts on Facebook," Jacobs said.
Jacobs noted that, contrary to what the plaintiffs say, Rapert bans only those who violate the rules of his social media platforms, but there are plenty of posts from people who disagree with him that remain.
Kaplan argued that Rapert's Facebook page "says it is a forum for constituents and citizens," and has far more participation than a regular Facebook account would.
Rapert, a three-term Republican incumbent, has more than 24,000 followers on Facebook and nearly 9,000 followers on Twitter. He has called the lawsuit frivolous and "very politically motivated."
Kaplan argued that because the Legislature began meeting Monday, "this is an especially auspicious time" for an injunction, but that even when the session is over, legislators meet on a regular basis on matters that engage the public, so Rapert's social media accounts should always be accessible to everyone who wants to comment.
Kaplan said the 4th Circuit held that actions are fairly attributable to the state when the sole intention of the official involved is to suppress comments critical of his public office.
He noted that Rapert has commented on his Facebook page on legislation before the General Assembly and on his effort to have the Ten Commandments statue monument on the Capitol grounds.
"It is inconceivable to me that anybody could deny they are a public forum," Kaplan said.
If Rapert unblocked his critics, "he doesn't have to read them," Kaplan said, arguing that ignoring his Facebook followers is different from what he is now saying -- "You can't even approach me."
Byrd noted that people who are blocked from commenting on Rapert's social media accounts have other ways of communicating with him, such as walking into his office at the Capitol or leaving a note on his door.
Dempsey testified that Rapert blocked her after she sent a private message to him on his Facebook page saying that as an atheist, she had an issue with him "denigrating people" who don't believe in God, and told him, "We don't like being told we are less than second-class citizens."
She said the block still allows her to see Rapert's Facebook page, but not to respond or to follow threads to which other people have responded.
"It's important for me to be a part of the dialogue," she testified.
Shosone testified that after Rapert tweeted that his opponent took money from "baby killers," she posted that the remark was interesting in light of the fact that he accepted money from the tobacco industry, "which kills people."
She said she received no response, and later realized she was blocked from his tweets.
She wants access to his posts, she said, "because he makes laws that affect me and the people I care about."
Barringer testified that he made sure his comment included a logo indicating he was a constituent of Rapert's Senate district when he commented about Rapert's efforts to restrict abortion. He said he soon realized he had been blocked.
"I like seeing and trying to understand other people's positions," he said. "If I can engage them in a discussion, ... maybe I can understand. "
He said he can still see what Rapert posts and what others comment, "but I can't react."
Metro on 01/16/2019