An atheist organization suing a state senator over claims its members' constitutional rights were violated when they were blocked from the senator's social media accounts scored a victory in federal court this week when the judge ordered the senator to turn over information requested by the organization before the scheduled trial date.
Calling the reasoning used by Sen. Jason Rapert, R-Conway, "repetitive boilerplate objections," U.S. District Judge Kristine G. Baker wrote that his objections were not a sufficient argument and gave Rapert until Aug. 5 to comply or to submit a privilege log on matters where he claims attorney-client privilege. Trial is scheduled to begin Oct. 3 in the matter.
In January 2019, American Atheists filed suit on behalf of four Arkansans against Rapert alleging that he violated both the U.S. and Arkansas constitutions by blocking members of the organization from accessing his official Twitter and Facebook accounts. The four contend that they were blocked because of criticism they posted in the past of Rapert's policies and because of their religious views.
In September 2021, American Atheists filed an expedited motion to compel discovery in the matter, asking Baker to order Rapert to respond to its requests for production and to pay the costs associated with filing the motion. The group argued that under Federal Rules of Civil Procedure, discovery responses for each item or category "must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting," and that objections to portions of a request "must specify the part and permit inspection of the rest."
Rapert argued in court documents that the discovery requests were overly broad and that the plaintiffs sought information and documents that are not relevant to the case, and on some issues he sought to claim privilege to avoid turning over some documents.
On Tuesday, Baker overruled those objections and ordered Rapert to comply with the plaintiffs' request for production of the discovery items at issue. In her ruling, Baker also ordered the plaintiffs to submit a petition for attorney's fees by Aug. 5.
"While the Court understands and appreciates Rapert's concerns," Baker wrote in the order, "those concerns do not absolve him from his duty to disclose discoverable information."
The lawsuit, originally filed in late 2018 and refiled in 2019 after it was dismissed over a procedural error, contends that Rapert blocked four members of American Atheists Inc. from his social media accounts over their religious views. Rapert has said that he blocked the four because they violated rules he requires all posters on his accounts to follow. Despite using his social media accounts to seek input from his constituents, Rapert has long contended that those accounts are strictly personal and not affiliated with his position as a state senator.
The issue of whether a politicians' social media accounts are personal or official has been a major issue since a federal appeals court in Virginia ruled in January 2019 that politicians violate the First Amendment when they ban their constituents from "official" social media pages.
Nick Fish, a spokesman for American Atheists, applauded Baker's ruling, saying that the judge "essentially sided with us on every single issue" raised in the motion. He said the materials and information are being sought in an effort to understand how Rapert's social media platforms are managed.
"We wanted records as to how that was being administered," Fish said. "Did he have any policies about how he was blocking our constituents? Who did he have administering the accounts? Was it just him or did he have members of his staff or members of his team running that?"
Fish said also being sought are the full records of the accounts, with all posts, including status posts on Rapert's Facebook and Twitter accounts. Seeking a complete record of the accounts, he said, ensures that nothing is being overlooked by the plaintiffs' attorneys as they prepare to go to trial.
"He objected, as Judge Baker said, using just boilerplate language often, saying he wasn't sure what we meant," Fish said. "We thought a compete record of the account is pretty straightforward and Judge Baker obviously agreed. We worked with his attorneys back and forth to help him understand what we meant."
Central to the plaintiffs' argument, Fish said, are the allegations in the complaint that Rapert, who is an elected public official, has used his social media platforms as a public forum to communicate with his constituents but has barred some constituents from participating based upon their disagreements with him.
"If this is a public forum for a public official and that public official is engaging in conduct that violates the U.S. Constitution and Arkansas state law," he said, "then we are entitled to those records as part of that litigation. It helps us make sure that we have a full and complete picture of the facts on the ground, not just what he is portraying as the facts."
Contacted by the Arkansas Democrat-Gazette, Rapert sent a statement characterizing the lawsuit as "frivolous," motivated by politics and saying he has been repeatedly threatened by "the woke left" that he said "has done everything they can to try and intimidate me."
Rapert said he has been threatened, harassed, and accused "of everything under the sun," saying that one person "who was publicly bragging about suing me with the American Atheists early on even went to jail for filing a false police report" against him.
In July 2018, several months prior to the lawsuit's filing, Stephan Ferry of Conway was convicted of a misdemeanor charge of filing a false police report and was sentenced to 180 days in jail with 150 days suspended, ordered to pay a $1,000 fine and to have no contact with Rapert or his family. Although Ferry has reportedly been a critic of Rapert in the past, he is not a party to the lawsuit.
The four plaintiffs in addition to American Atheists are Betty Fernau and Robert Barringer, both of Conway, Karen Dempsey of Rogers and Catherine Shoshone of Maumelle. None showed up in a search of court records related to Rapert's claim.
The senator, who was defeated in his recent Republican primary bid for lieutenant governor and will leave the Legislature when his term expires at the end of the year, went on in his statement to call the lawsuit a "charade" that should not be allowed by the federal judiciary.
"If there is any Justice left in America this whole lawsuit should be thrown out," he wrote.
Fish said Baker's ruling is a significant step forward and he expressed his hope that it signals a resolution is in sight.
"Our plaintiffs want nothing more than to be able to engage with their elected representatives and to push back where they feel they need to push back," he said. "Part of the problem here is that he doesn't want to listen to that criticism even when it's offered in good faith and that's a shame. It's a shame for us and for everyone else as well."