Darren Chaker First Amendment Appeal

 

Darren Chaker, Ninth Circuit
Darren Chaker at the Ninth Circuit, Pasadena

In a classic example of viewpoint discrimination, California Blogger Darren Chaker was put in jail. But his conviction was reversed federal court on First Amendment grounds. “Ms. Leesa Fazal, an investigator with the Nevada Attorney General’s Office, was “forced out” of her previous post with the Las Vegas Police Department.”  See Cato Institute article. Supporters included The Cato InstituteACLU of San DiegoElectronic Frontier FoundationFirst Amendment Coalition, and Brechner First Amendment Project at University of Florida.

Darren Chaker was on probation for a white collar crime. The record shows his bankruptcy attorney fraudulently filed a bankruptcy petition without Darren Chaker’s knowledge. The report states in part, “In my opinion Chaker’s attorney did not exercise a reasonable standard of care in filing a Second Bankruptcy Case without Chaker’s consent and signature. Indeed, in my opinion such conduct is fraudulent.”  See expert report, page 7.  Despite the conduct of his bankruptcy attorney, Darren Chaker was found guilty of only a single charge at trial. That conviction is being challenged. After serving a few months in minimum security, Darren Chaker started probation.

The Ninth Circuit, Case. No. 15-50138/ No. 15-50193, found, see opinion “Chaker’s blog post, which claimed that former police investigator Leesa Fazal “was forced out of the Las Vegas Metro Police Department,” does not qualify as harassment.” The court continued to state in relevant part, “The government also failed to prove that Chaker’s blog post satisfied the elements of defamation, including falsity and actual malice. See N.Y. Times Co. v. Sullivan, 376 U.S. 254 279–80 (1964).”

The blog about Leesa Fazal was protected speech also in the sense it publicized on a matter of public importance. Specifically, Leesa Fazal had appeared to have been detained by police after being found having brought her gun into a San Diego court room. This videotaped by Darren Chaker, where Leesa Fazal was taken to a back room after being told not to leave. See video.  The issue was that Leesa Fazal was not a peace officer in the State of California and appeared to may have broken the law.  Thus, under Obsidian Fin. Grp. v. Cox, — F.3d –, 2014 WL 185376 (9th Cir. Jan. 17, 2014) where Darren Chaker was entitled to journalistic protection due to publishing material about a matter of public concern.

First Amendment law professor Eugene Volkah provided assistance to the attorneys for Darren Chaker. Such speech cannot be restricted simply because it is upsetting or arouses contempt”). Even though the Internet is the newest medium for anonymous, uncomfortable expression touching on political or religious matters, online speech is equally protected under the First Amendment as there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to online speech. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997).

The Supreme Court has directly considered factual circumstances where a petitioner was arrested for disorderly conduct after “verbally and negatively” protesting a police officer’s treatment of him, and concluded that “[s]urely, one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer.” Norwell v. City of Cincinnati, 414 U.S. 14, 16 (1973); Colten v. Kentucky, 407 U.S. 104, 111 (1972) (“Individuals may not be convicted under the [disorderly conduct] statute merely for expressing unpopular or annoying ideas.”)

The First Amendment gives protection to those who want to speak on unpopular ideas. This protection also precludes the government from silencing the expression of unpopular ideas. See Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (“[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”). See also R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively invalid.”).