Federal court reverses conviction for blogger, Darren Chaker, who went to jail for free speech guaranteed under the First Amendment. While on probation for a white collar crime, it was alleged Darren Chaker made a false statement about Leesa Fazal of Las Vegas. “Specifically, Mr. Chaker wrote that Ms. Fazal, an investigator with the Nevada Office of the Attorney General, had previously been “forced out” of the Las Vegas Police Department.” says First Amendment law professor Clay Calvert at the University of Florida’s Marion B. Brechner First Amendment Project. The blog before the Ninth Circuit, also addressed the fact Leesa Fazal, a Nevada peace officer, brought her firearm into a San Diego Superior Court while hoping to testify in a family law matter.
As a witness and litigant Mr. Chaker’s assessment of what happened was fair. Leesa Fazal was not allowed to testify, and appears was detained by Sheriff Deputies when told not to leave as she was walking to the exit, and taken to a back area. It was Mr. Chaker who informed court security she had a firearm on her. See video https://youtu.be/v9rGkkh84rg [Link is a public record, U.S. District Court Nevada Case No. 2:16-cv-00036.] Attorney Scott McMillan, McMillan Law Firm La Mesa, exited the elevator with Ms. Fazal – he apparently may not have advised her she may be breaking the law when they entered court together (but am not sure). Scott McMillan, McMillan Academy of Law, battered Mr. Chaker after a different court hearing on a different day after losing a motion to Mr. Chaker.
It appears Ms. Fazal did not like the publicity of her conduct online. Ms. Fazal complained to the FBI, the Nevada Attorney General, and Las Vegas Metropolitan Police Department and no one arrested or questioned Mr. Chaker. The Las Vegas Metro Police report stated, in relevant part, “All the evidence was reviewed and does not rise to the level of criminal harassment.”
Ms. Fazal communicated to the probation officer Mr. Chaker may have had something to do with her firearm being stolen out of her car. However, Ms. Fazal’s own Officer Safety Alert stated – “The suspect is unknown”, See excerpt,
A court hearing was held a few weeks later. The blog consisted of about 421 words. Only two words were found to be false – “forced out”. The court found, despite no evidence was introduced – the statement Mr. Chaker made was in fact false, or that Mr. Chaker knew the statement was false – hence actual malice. As page 27 of the opening brief states, “Without actual malice, the speech is protected by the First Amendment — even if false and damaging to Fazal’s reputation. See Alvarez, 132 S. Ct. at 2550-51 (stating that when a false statement is made without actual malice, the best remedy is not “handcuffs” but publication of “the simple truth”).” An appeal was filed, and numerous civil rights organizations joined to support Mr. Chaker.
As the ACLU of San Diego states, “even if the defamation condition is valid, the court did not require the government to prove that Mr. Chaker made a false statement of fact, subjectively believed his statement to be false, or acted with reckless disregard of its truth.” At the hearing, Mr. Chaker admitted he posted the blog after doing online research. It was never proven what Mr. Chaker posted was “a false statement of fact.” Although Ms. Fazal was flown to San Diego and in court, the government did not call her as a witness. The court found Mr. Chaker violated probation, and an appeal ensued.
On the morning of July 7, 2016, the Ninth Circuit reversed a conviction based on First Amendment rights concerning Darren Chaker. The Cato Institute, ACLU of San Diego, Electronic Frontier Foundation, First Amendment Coalition, and Brechner First Amendment Project at University of Florida filed a joint amicus brief in his support wanting the court to reverse a decision from a San Diego federal judge who found Mr. Chaker violated probation by posting a blog about Nevada Attorney General Investigator Leesa Fazal, of Las Vegas. A compelling opening brief was filed by Federal Defenders of San Diego Inc. The amicus brief was authored by the Washington D.C. office of Wilmer Cutler Pickering Hale and Dorr, who is consistently ranked as an international top 20 law firm.
See opinion, Darren-Chaker-Appeal, where the Ninth Circuit found absolutely no harassment or defamation took place.