State officials’ online blocks face scrutiny

Court ruled against Trump for banning Twitter critics

Last week’s ruling by a federal appeals court against President Donald Trump over his penchant for banning online critics raises points similar to those found in a lawsuit filed against an Arkansas state senator over claims of social media censorship.

State Sen. Jason Rapert, R-Conway, and his social media following of tens of thousands of users have become a local focal point in a growing legal debate over the rights of citizens to interact online with government figures.

A federal lawsuit filed in January by four Arkansans, in conjunction with New Jersey-based American Atheists Inc., accuses the outspoken conservative senator of violating the free speech rights of those who have criticized his policies in comment threads on social media.

Rapert has dismissed the lawsuit as politically motivated and accused his opponents of using threatening and vulgar language in their online posts.

On Twitter, Rapert has two accounts, the larger of which he describes as a personal account separate from his official campaign account. The senator runs a single public Facebook page, with more than 26,000 followers.

The ruling handed down Thursday by a three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York upheld a district judge’s ruling that Trump’s use of Twitter’s blocking feature on his personal account, @realDonaldTrump, is unconstitutional despite the account being separate from ones run entirely by the White House and presidential staff.

Asked about last week’s court ruling against Trump, Rapert continued to defend his practice of banning people from his pages, noting that unlike the president, no public staff members help manage his accounts.

“I don’t have to give a platform to anyone that attempts to hijack my own platform,” Rapert said.

Geoffrey Blackwell, an attorney for American Atheists, framed the ruling against Trump as a boon for the group’s lawsuit against Rapert.

“It reaffirms all the arguments we made to the court back in January,” Blackwell said. “Those accounts are public forums. They are using them to speak as the government and soliciting the impact of the public.”

While no new filings have been made in the case since the 2nd Circuit’s ruling, Blackwell said he had called the clerk at U.S. District Judge Kristine Baker’s chambers to ensure the judge was aware of the ruling. He added that the decision would be referred to in future briefs.

STATE REVIEWS RELEVANCE

The state attorney general’s office, which represents Rapert in the lawsuit, said in a statement Friday that it is “reviewing the Second Circuit’s decision to determine its relevance — if any — to cases the State is currently

litigating.” (Rapert is additionally represented by a private attorney.)

Trump’s attorneys had made similar arguments as Rapert and the Arkansas attorney general’s office, asserting that personal accounts of government figures, while open to the public, are not the same as those run by the government.

In looking at Trump’s personal Twitter account, however, the Court of Appeals found that it is “one of the White House’s main vehicles for conducting official business.” The court specifically declined to address whether elected officials are allowed to exclude people from private accounts.

“Once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with,” last week’s opinion by Court of Appeals Judge Barrington Parker read.

The ruling by the 2nd U.S. Circuit Court prompted within days a lawsuit against a prominent Democrat, U.S. Rep. Alexandria Ocasio-Cortez of New York, based on similar claims that she had violated free-speech rights of critics by using Twitter’s ability to block specific users, according to The New York Times.

The ruling has also renewed attention toward how local elected officials curate their social media followings.

Officials with the Arkansas Republican and Democratic parties said they would advise officials to keep their social media accounts open.

“My advice would be to follow the court order,” said Jacob Kauffman, a spokesman for the state Democratic Party. He also said no officials had sought advice from the party on the matter.

Stephen Houserman, a GOP spokesman, said in an email that the party encourages candidates not to “block or engage in toxic behavior on social media.

“Ultimately it is the candidate’s responsibility to police their personal social media accounts with the understanding that it may be considered a public forum,” Houserman said.

HARASSERS BLOCKED

In an email sent as a follow-up to an initial interview, Rapert asserted that he had been forced to block users who sent “threatening or harassing messages.” He included screen shots of threatening messages. One came from a woman who expressed the hope to kill Rapert “slowly by eating you alive in front of your family.”

Rapert said the threatening messages had been sent to law enforcement. One critic, Stephan Ferry of Conway, was convicted last year of filing a false police report against Rapert and was ordered to stay away from the senator.

When asked if he had similar examples of threatening messages from the plaintiffs who sued him earlier this year, Rapert said he was unable to provide additional examples because of the ongoing lawsuit.

In their complaint, the plaintiffs — Betty Jo Fernau and Robert Barringer of Conway, Karen Dempsey of Rogers and Catherine Shoshone of Maumelle — each alleged to be atheists who said they were blocked by Rapert based on their online criticisms of the senator, who is also an ordained minister. Screen shots included in their lawsuit did not include tweets that were directly threatening to Rapert.

Katie Fallow, the senior staff attorney with the Knight First Amendment Institute that successfully sued against Trump’s Twitter blocking, said court decisions have left open a “gray area” concerning elected officials banning users based on claims of harassment.

“You would have to apply it equally to everybody,” Fallow said. “You couldn’t allow your supporters to say vulgar and hateful things.”

Fallow said it was also unclear whether recent court rulings would apply to other public officials, such as college football coaches.

Blackwell said First Amendment questions surrounding social media banning have little precedent in the 8th U.S. Circuit Court of Appeals, which covers Arkansas.

In an email, Blackwell pointed to a single other case within the circuit, in which a federal district judge from the Western District of Missouri declined to dismiss a lawsuit against a state representative who had blocked a constituent on Twitter. The lawsuit is pending.

No additional lawsuits appear to have been filed in Arkansas, although the practice of lawmakers banning users is not limited to Rapert’s accounts.

State Sen. Missy Irvin, R-Mountain View, said users who curse or call her names are subject to being banned from her Twitter page, which has more than 4,000 followers.

“It’s just my way of walking away,” Irvin said.