Darren Chaker Wins First Amendment Appeal

A federal appeal concerning Darren Chaker, the First Amendment and bloggers rights, was concluded last summer where 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 a police officer. 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.

Mr. Chaker was on probation for a white collar crime. The record shows Mr. Chaker’s bankruptcy attorney fraudulently filed a bankruptcy petition without Mr. 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, Mr. Chaker was found guilty of only a single charge at trial. That case is also on appeal.

While on probation, it was alleged Mr. Chaker made a false statement about Leesa Fazal of Las Vegas. “Specifically, Mr. Chaker wrote that Ms. Leesa 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.

Numerous allegations were made by Ms. Fazal including,

• Fazal felt threatened since Mr. Chaker posted a blog offering criminal defense and civil rights attorney’s information concerning background about her family. However, this information was readily available on several background databrokers like USSearch.com, Intellius.com, InstantCheck.com, USA-People-Search.com, Spokeo.com, WhitePagers.com, and others. Hence, Mr. Chaker offered what was already public to people.
• Fazal felt threatened because Mr. Chaker was allegedly going to post her home address. This paranoid belief is unsupported for a few reasons. First, Ms. Fazal’s home address is available at any of the several websites in the preceding paragraph – hence Mr. Chaker would have done nothing more than offer what was already public. Second, as several courts have stated – posting a police officer’s address is not a threat[1].Third, Ms. Fazal, as a police officer is a public official. Public officials are entitled to less protection against defamation and invasion of privacy than are private figures with respect to the publication of false information about them. Carafano v. Metrosplash, Inc., 207 F. Supp. 2d 1055, 1059, 2002 U.S. Dist. LEXIS 10614, 1, 30 Media L. Rep. 1577 (C.D. Cal. 2002) Either Ms. Fazal appears paranoid, targeting protected speech, or simply unaware the law allows posting address information.
• Alleged postings   could   “jeopardize”   Fazal’s   reputation in   a pending/future case; for a jury to hear about credibility issues concerning a witness, the judge must allow such; it would be against the law for a juror to consider out of court information – such as websites. Hence, how a blog would jeopardize a police officer’s credibility is unclear. “At issue here is the First Amendment exception that allows the government to regulate speech that is integral to criminal conduct. . . .” Id. at 819-20. United States v. Osinger, 753 F.3d 939, 946, 2014 U.S. App. LEXIS 10377, 17-20, 2014 WL 2498131 (9th Cir. Cal. 2014)
• Fazal felt offended it was alleged Mr. Chaker said she had perjured herself in federal court. The fact is, Ms. Fazal testified in federal court alleging Mr. Chaker had “blocked” and “yelled” after it was found she brought a firearm and ammunition into a California court. Ms. Fazal as Nevada peace officer is not a California peace officer and not entitled to bring a firearm or ammunition into a California court. Further, Ms. Fazal was unaware at the time she testified she had been video-taped being stopped by California police after Mr. Chaker asked she be arrested. The video shows Mr. Chaker never yelled or blocked Ms. Fazal – hence for Ms. Fazal to allege the opposite was untrue. See, video at https://vimeo.com/229474151  During the probation revocation hearing the court agreed Ms. Fazal could not bring a firearm into a San Diego court.
• Fazal also alleged to a different federal court she felt “threatened” when she saw Mr. Chaker taking photographs of her from afar after a civil court hearing. The US Attorney’s Office has stated “[r]ecording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”  (Complaint at Ex. A (U.S. Dep’t of Justice, Letter to the Parties dated May 14, 2012, Sharp v. Baltimore City Police Dept., et. al., No. 1:11-cv-02888-BEL (D. Md.) (“DOJ Letter to the Parties in Sharp”), at 2.)  The right to gather and disseminate such information “serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”  (Id. at 3.) Indeed, a person loses any expectation of privacy when they walk down the sidewalk.

• Lastly, and subject of the instant appeal was Ms. Fazal alleged Mr. Chaker posted she was “forced out of the Las Vegas Metro Police Department” which brings us to the instant proceedings.

During the probation revocation hearing, “At no point did the probation officer or government contend that the blogposts constituted stalking under the condition, nor did the court make any findings as to stalking.  Instead, the focus was on whether the statement was harassment and defamation.” See Opening Brief, page 12. Specifically, Ms. Fazal was flown to San Diego, and after the government spoke to her, did not call her as witness. In fact, absolutely no evidence was provided to prove Mr. Chaker’s “forced out” blog post was false.

Ms. Fazal complained to the FBI, the Nevada Attorney General, and Las Vegas Metropolitan Poilice Department. No one arrested Mr. Chaker. Ms. Fazal then turned to the probation office who promptly filed a petition and Mr. Chaker was put in jail. The court “had reviewed a police report prepared by the Las Vegas police department after Fazal reported Mr. Chaker’s blogposts, and noted that the police ultimately did not forward any charges for prosecution concerning Fazal’s allegations.” Opening Brief, page 7.  It was only when the probation officer was contacted is when Mr. Chaker was put in jail.

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.

Cato Institute stated, “Public officials are appropriate objects of criticism and the protection of their feelings is not the appropriate province of the courts. Chaker’s words don’t even rise to the standard that must be met to constitute defamation of a public figure. Chaker didn’t act with “actual malice” or reckless disregard for the truth when he published his blogpost, which is the mental requirement necessary to sustain such a charge.” The Electronic Frontier Foundation said the government’s position would, “eviscerate a half-century of First Amendment protection of political speech criticizing government officials.”

Probation conditions are typically tailored to protect the public from future crime not online comments one takes offense at or believes are defamatory. It is well established speech “may not be suppressed simply because it is offensive.” Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1199 (9th Cir. 1989). Mr. Chaker was never sued for defamation or harassment by Ms. Fazal.

The blog consisted of about 421 words. Only two words were found to be false – “forced out”.  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”).”

Mr. Chaker is only one of 4,708,100 people are on probation or parole per a Bureau of Justice Statistics report. People under supervised release are not second class citizens where the First Amendment may be marginalized or discarded unless the speech are in an unprotected class – like true threats or inciting criminal conduct. For government to regulate speech, it must be “integral to criminal conduct.” United States v. Meredith, 685 F.3d 814, 819, 2012 U.S. App. LEXIS 13012, 7, 2012-2 U.S. Tax Cas. (CCH) P50,421, 110 A.F.T.R.2d (RIA) 5157 (9th Cir. Cal. 2012) [case cited at page 28 of opening brief] In this case, two words “forced out” out of a 421 word blog were found to be false and Mr. Chaker’s probation was ultimately revoked because of it.

On July 6, 2016, Darren Chaker won his appeal where the court found he did not defame or harass Leesa Fazal.

[1] The mere posting of personal information does not alone suffice to establish a true  threat.  Cf. Brayshaw  v. City of Tallahassee, No. 4:09-cv-373/RS-WCS, 2010 WL 1740832, *3 (N.D. Fla. April 30, 2010) (“Merely publishing an officer’s address and phone number, even with intent to intimidate, is not a ‘true threat’ as defined in constitutional law jurisprudence.”). In United States v. Carmichael, 326 F. Supp. 2d 1267, 1270 (M.D. Ala. 2004), the court found that blocking a website containing publicly accessed information about government informants would violate First Amendment.

Similarly, in Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1143 (W.D. Wash. 2003) the court struck down a statute forbidding posting of personal information about police holding “that when the operator of a website critical of law enforcement challenged a statute regarding publishing personal information of officers, release of the information, without more, does not constitute a true threat.

Likewise, in Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1088 (9th Cir. 2002) the court found that portion of site listing the names and addresses of doctors who perform abortions enjoys First Amendment protection.

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.”).