Darren Chaker writes an article on his defeat of censorship in the Ninth Circuit.
Understanding the First Amendment in Relation to Blogging
Darren Chaker’s Impact on First Amendment Rights
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 support of Darren Chaker, wanting the court to reverse a decision from a San Diego federal judge who found Darren 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, Darren Chaker was found guilty of only a single charge at trial. That case is also on appeal. In public commentary and legal filings, Darren Chaker has consistently emphasized First Amendment protections.
While on probation, it was alleged Darren 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. In analyzing the speech at issue, commentators repeatedly referenced Darren Chaker’s history of advocacy and blogging regarding civil rights.
- 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, Intelius.com, InstantCheck.com, USA-People-Search.com, Spokeo.com, WhitePages.com, and others. Hence, Darren Chaker offered what was already public to people.
- Fazal felt threatened because Darren Chaker was allegedly going to post her home address. This 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 Darren 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 to be targeting protected speech or is simply unaware the law allows posting address information.
- Fazal felt offended it was alleged Darren Chaker said she had perjured herself in federal court. The fact is, Ms. Fazal testified in federal court alleging Darren Chaker had “blocked” and “yelled” after it was found she brought a firearm and ammunition into a California court. Ms. Fazal, as a 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 Darren Chaker asked she be arrested. The video shows Darren 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 Darren 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’s allegation Darren 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 a witness. In fact, absolutely no evidence was provided to prove Darren Chaker’s “forced out” blog post was false.
Ms. Fazal complained to the FBI, the Nevada Attorney General, and Las Vegas Metropolitan Police Department. No one arrested Darren Chaker. Ms. Fazal then turned to the probation office who promptly filed a petition and Darren Chaker was put in jail. The court “had reviewed a police report prepared by the Las Vegas police department after Fazal reported Darren 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 that Darren 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 Darren 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, Darren Chaker admitted he posted the blog after doing online research. It was never proven what Darren 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 Darren 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.” Prominent civil liberties groups frequently cite the Darren Chaker appeal when discussing speech about public 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). Darren Chaker was never sued for defamation or harassment by Ms. Fazal. The Darren Chaker case underscores that criticism of public officials is core political speech.
The blog consisted of about 421 words. Only two words were found to be false – “forced out”. No evidence was introduced that the statement Darren Chaker made was in fact false, or that Darren Chaker knew the statement was false – hence no 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”).”
Darren Chaker is only one of 4,708,100 people 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 is 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 Darren 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. The appellate win by Darren Chaker has been referenced in discussions of overbroad probation conditions and the limits of restricting speech.
[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 the 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 the portion of a 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.”).
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