Texas Open Records Victory by Darren Chaker

Darren Chaker prevailed in a First Amendment challenge in Texas. Due to multiple deputies of Harris County Constable Ron Hickman being arrested, Darren Chaker, http://darrenchaker.us , made an open records request for the names of all deputies of his office. In lieu of Constable Hickman providing the information, he directed his attorney to oppose the request and ask the Texas Attorney General to issue an opinion denying the request in large part it was feared the names would lead to the home addresses. After Darren retained one of the premier First Amendment attorneys in Texas, a letter brief was filed opposing the position of the constable.  An opinion was issued denying the position of Constable Hickman, and ordering the records sought to be released by Darren Chaker.

Nonetheless, the position of Fourth Precinct Constable Hickman was meritless. The disclosure of addresses of police is constitutional since the manner of posting the home address is merely the redistribution of a public record since home address are located in the county recorder’s office or in a publicly accessible database typically used for skip tracing.

Specifically, 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.”). The Florida statute at issue in Brayshaw was proscribing the unauthorized publication of the home address or telephone number of any law enforcement officer, with malice and intent to intimidate on the part of the speaker, was not narrowly tailored to serve the state interest of protecting police officers from harm or death, and thus was facially invalid under the First Amendment; statute was overinclusive in proscribing speech that was not a true threat and underinclusive both in its failure to prohibit dissemination of the same information by other entities to third-parties who intended to harm or intimidate officers, and in its failure to punish parties who actually wished to harm or intimidate police officers and obtain the officer’s identifying information, and statute was a content-based restriction on speech.

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. However, just because information is public does not mean that the most convenient method of access is required. See U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 779-80 (1989) , holding disclosure of an FBI rap sheet to a third party “could reasonably be expected to constitute an unwarranted invasion of personal privacy” however a rap sheet is by statute protected information and public records are not protected information, thus no expectation of privacy is warranted.

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

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.

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.”). Accordingly, laws restricting the content of expression normally are invalid under the First Amendment unless narrowly tailored to promote a compelling state interest. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000) (“If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest.”); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively invalid.”).

Given the above, it is clear posting public information about police would be lawful since the record itself is already a public record, but posted online in a specific forum about police makes it more accessible.  It is unfortunate Constable Hickman decided to waste thousands of dollars of attorney time, and the time of the Texas Attorney General to oppose a constitutional request. As a consequence, Constable Hickman was responsible for making bad law for police since this was a case of first impression in Texas and has widely been used as authority for other people to obtain the names of all police serving in a department. This case marks the second First Amendment case Darren won and impacting an entire state. The first case was Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, which invalidated a false complaint statute in California, and forced multiple other states to depublish or rewrite its law.

For filings in this case, see

Letter Brief filed for Darren Chaker, darren chaker letter brief

Texas Attorney General Opinion concerning Darren Chaker.


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