Darren Chaker First Amendment Appeal

Darren Chaker, Ninth Circuit

 

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.”).

Anonymous Speech by Darren Chaker

Darren Chaker , say no to censorship
Darren Chaker , say no to censorship
Anonymous is a supporter of a Free Internet

First Amendment balancing test, Darren Chaker, in the Ninth Circuit and other courts view the balancing interests to determine to allow anonymous speech online, even where viewpoint discrimination may be at play. In order to balance these interests, the courts have drawn by analogy from the balancing test that many courts have adopted in deciding whether to compel the disclosure of anonymous sources or donors.  United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980); Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Cervantes v. Time, 464 F.2d 986 (8th Cir. 1972); Baker v. F&F Investment, 470 F.2d 778, 783 (2d Cir.1972).  See also UAW v. National Right to Work, 590 F.2d 1139, 1152 (D.C. Cir.1978); Black Panther Party v. Smith, 661 F.2d 1243, 1266 (D.C. Cir. 1981).   Moreover, the anonymous publication of musical works, like other forms of performance, is speech protected by the First Amendment.   In re Verizon Internet Svces, 257 F. Supp.2d 244, 260 (D.D.C. 2003), rev’d on other grounds, 351 F.3d 1229 (D.C. Cir.).

Accordingly, the courts that have considered this question have adopted a several-part balancing test to decide whether to compel the identification of an anonymous Internet speaker so that he may be served with process.

This test was most fully articulated in Dendrite v. Doe, 775 A2d 756 (N.J.App. 2001), which remains the only appellate opinion in the country to face the question squarely.  Dendrite requires the would-be plaintiff to (1) use the Internet to notify the accused of the pendency of the identification proceeding and to explain how to present a defense; (2) quote verbatim the statements allegedly actionable; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation, and (5) show the court that, on balance and in the particulars of the case.

Darren Chaker looked at several other courts have similarly set forth requirements of notice, review of the complaint, and presentation of argument and evidence before an ISP will be compelled to identify an Internet speaker.  For example, in Melvin v. Doe, 49 Pa.D.&C.4th 449 (2000), appeal quashed, 789 A.2d 696, 2001 Pa.Super. 330 (2001), appeal reinstated, 836 A.2d 42 (Pa. 2003), the trial court allowed an anonymous defendant to present evidence and seek summary judgment, ordering disclosure only after finding genuine issues of material fact requiring trial.  In reversing the denial of the defendant’s interlocutory appeal, the Pennsylvania Supreme Court discussed at length the conflict between the right to speak anonymously and the plaintiff’s right to identify a potential defendant, and remanded for consideration of whether evidence of actual damage had to be presented before the right of anonymous speech could be disregarded.  836 A.2d at 47-50.

Similarly, in La Societe Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857 (Conn. Super.), the court applied a balancing test and considered evidence that allegedly defamatory statements were false and caused injury before deciding to allow discovery concerning the identity of the speaker.   In Columbia Insurance Co. v. Seescandy.com, 185 FRD 573 (N.D.Cal. 1999), the court required the plaintiff to make a good faith effort to communicate with the anonymous defendants and provide them with notice that the suit had been filed against them, thus assuring them an opportunity to defend their anonymity, and also compelled the plaintiff to demonstrate that it had viable claims against such defendants.  Id. at 579.

Last, Darren Chaker found, in Re Subpoena to America Online, 52 Va.Cir. 26, 34 (2000), rev’d on other grounds, 542 S.E.2d. 377 (Va. 2001), the court required introduction of the allegedly actionable Internet posting, and required that the court be “satisfied by the pleadings or evidence supplied” that the subpoenaing party had a legitimate basis to contend that it was the victim of actionable conduct, “and . . . the subpoenaed identity information [must be] centrally needed to advance that claim.