Federal Judge Kristine Baker has refused Republican Sen. Jason Rapert’s request to dismiss a lawsuit challenging his blocking of people on his Facebook and Twitter accounts.

The judge indicated Rapert was likely to lose the case because he was acting as a public official in limiting free speech. She said she wasn’t likely to award financial damages against the senator personally. She also refused an injunction for the plaintiffs, led by the American Atheists. In similar cases, declaratory judgments have been issued about the law, the judge said. She also noted the length of time the plaintiffs had waited after being blocked to complain, as long ago as 2014.

The judge’s order recounts extensively Rapert’s blocking of individual plaintiffs for criticizing him on social media, particularly on his opposition to same-sex marriage. The judge notes that other federal circuits have dealt with similar questions but not the 8th Circuit, which includes Arkansas, nor the U.S. Supreme Court.

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Rapert contends the accounts on which he’s blocked people are personal, not state accounts. (His lawyers include the state attorney general’s office) The judge ruled otherwise, noting many posts on Twitter and Facebook related to his official duties:

While considering the facts stated above that suggest that State Senator Rapert’s social media accounts are private, the totality of the circumstances in this case based on the limited record before the Court at this stage show that plaintiffs have a fair chance of prevailing on their claim that State Senator Rapert’s accounts rely on “the power and prestige of . . . state office” and were “created and administered . . . to perform actual or apparent duties of [his] office.”

The judge has asked for more information from the parties. For example, she said it isn’t clear whether he’s used government equipment. She notes some of his videos appear to have been made in government offices. So far, she said, however, “the vast majority of his social media posts in the record evidence submitted to the Court concern issues that are related to his position as a state senator, including state and local policy issues and updates regarding the Arkansas General Assembly.”

The judge agreed Rapert has a right to ignore statements from the public, but said that didn’t equate to an ability to block them. He could simply not read or respond to such messages, she said.

Also pending is a question of whether the Arkansas Constitution, which protects the right of “remonstrance,” might go farther than the First Amendment in protecting speech.

The judge dismissed some arguments, such as a violation of religious freedom in Rapert’s blocking of atheists. But she did find that the lawsuit made a valid claim of viewpoint discrimination in being barred from a public forum by Rapert.

Lots of good information on the controversy in the judge’s 82-page opinion.

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For once, Rapert is resisting the urge to pop off about the perfidious federal courts. No whining on his social media accounts as yet.