A federal appeal concerning Darren Chaker, the First Amendment and bloggers rights, is now pending 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 a Nevada Attorney General investigator (“police officer”). “Specifically, Mr. Chaker wrote…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.
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.
The court record shows the police officer made multiple complaints to various law enforcement agencies, but none arrested Mr. Chaker. The court “had reviewed a police report prepared by the Las Vegas police department after [the police officer] reported Mr. Chaker’s blogposts, and noted that the police ultimately did not forward any charges for prosecution concerning the [police officer’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 the police officer 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 by the police officer.
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.
The final brief in this matter will be filed January 22, 2016.