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Ninth Circuit: Appeal Challenges Probation Revocation for Exercising First Amendment Rights

A former federal prisoner is appealing the revocation of his supervised release for engaging in conduct that he argues is protected under the First Amendment. The Cato Institute, Electronic Frontier Foundation, ACLU, Brechner First Amendment Project at the University of Florida and First Amendment Coalition filed a joint amicus brief in support of an appeal by Darren David Chaker, who seeks to reverse a San Diego federal judge’s decision to revoke his probation due to comments he made on an online blog.

Nevada Attorney General’s Office investigator Leesa Fazal had seen Chaker’s blog post, which provided information on why Fazal had been “forced out of the Las Vegas Metro Police Department.” Fazal felt the blog insulted her credibility and reported it to her superior at the Attorney General’s Office, then to the FBI and the Las Vegas Metro Police Department. All three agencies declined to arrest Chaker. She then contacted Chaker’s federal probation officer, who had him jailed pending a hearing. The probation officer did not verify whether Chaker’s blog comments were truthful or not.

Although she was in court, the government did not call Fazal as a witness during the hearing. Further, rather than requiring the government to prove that Chaker had posted false information, the court shifted the burden by asking Chaker what evidence he had that Fazal had been “forced out” of the police department. When Chaker responded that he obtained the information from other blogs, the court dismissed his defense, found he had violated the conditions of his supervised release by making harassing or otherwise defamatory statements, and ordered him to serve six months in a halfway house.

 “The case goes to the core of the First Amendment,” said David Loy, director of the ACLU for San Diego and Imperial Counties. “The court relied on ‘a novel hodgepodge of miscellaneous defamation and harassment elements’ to find Mr. Chaker in violation without requiring the government to prove the constitutionally required elements of defaming a public official.”

For government to regulate speech in this context, Chaker argued on appeal that it must be “integral to criminal conduct.” In this case the “forced out” blog comment was reviewed by local, state and federal law enforcement officials who declined to arrest Chaker, thus it did not constitute criminal conduct. In addition, Chaker did not threaten Fazal in any manner and she was only concerned about her reputation.

“The First Amendment protects the right of everyone to use the Internet to criticize government officials – including people on supervised release from prison,” noted Electronic Frontier Foundation senior staff attorney Adam Schwartz.

Additionally, as a public figure, Fazal was entitled to less protection against defamation and invasion of privacy than non-public figures. In Duran v. City of Douglas, Arizona, 904 F.2d 1372 (9th Cir. 1990), the Ninth Circuit held that profanities and obscene gestures directed at a police officer by a car passenger were speech and conduct protected under the First Amendment. Considering that such insults are protected, Chaker argued that his blog post was well within the scope of constitutional protection.

In sum, Chaker contends on appeal that he had an absolute free speech right to post his blog comment about Fazal. As the U.S. Supreme Court has noted, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” See: Houston v. Hill, 482 U.S. 451 (1987).

In a previous case, Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005), cert. denied, Chaker filed a habeas petition that effectively struck down a law prohibiting citizens from filing purported false complaints against police officers. In his current appeal, which remains pending, he said he hopes the Ninth Circuit will reverse the district court’s order and “uphold the First Amendment rights of people who are on supervised community release, as they should not be marginalized.” See: United States v. Chaker, Ninth Circuit Court of Appeals, Case Nos. 15-50138 and 15-50193.


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Related legal case

United States v. Chaker