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Ninth Circuit Reverses Revocation of Supervised Release Over Blog Post

by Christopher Zoukis

The federal government's attempt to restrict a former prisoner’s First Amendment right to free speech has been reversed by the Ninth Circuit Court of Appeals.

Darren Chaker was convicted of a white collar crime related to a bankruptcy filing and sentenced to 15 months in federal prison. As part of his three years of supervised release (i.e., federal probation), he was not allowed to “stalk and/or harass other individuals, to include, but not limited to, posting personal information of others or defaming a person’s character on the internet.”

Chaker’s probation officer alleged he had violated that condition by making a false statement about Leesa Fazal, an investigator with the Nevada Office of the Attorney General. According to Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida, Chaker wrote in an online blog post that Fazal had been “forced out” of the Las Vegas Police Department.

Not pleased by that statement, Fazal complained to the FBI, the Nevada Attorney General and the Las Vegas Police Department, all of which declined to charge Chaker over his comments in the blog post. Fazal then turned to the U.S. Probation Office, which promptly violated Chaker’s supervised release and returned him to custody.

A revocation hearing ensued, with the government insisting that Chaker’s blog post constituted harassment and defamation in violation of the terms of his supervised release. The violation was upheld by the district court.

On appeal to the Ninth Circuit, a joint amicus brief – also known as a “friend of the court” brief – was submitted by the Cato Institute, the ACLU of San Diego, the Electronic Frontier Foundation, the First Amendment Coalition and the Brechner First Amendment Project. The brief argued that because the target of Chaker’s speech was a government official the law required proof of malicious intent, which was not offered at the revocation hearing.

The amicus brief noted, “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 blog post which is the mental requirement necessary to sustain such a charge.”

The Ninth Circuit agreed in a terse, unpublished ruling on July 6, 2016. The appellate court noted that Chaker’s comment did not qualify as harassment, was not directed at Fazal, was not intended to harass Fazal and did not satisfy the elements of defamation, which include falsity and actual malice. In the latter regard, the Court of Appeals cited United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015) (“[C]onditions of supervised release are read to require an element of mens rea.”)

Because his statement did not qualify as either harassment or defamation, the Court did not consider the constitutional issues related to the First Amendment rights of people on federal supervised release. See: United States v. Chaker, 654 Fed. Appx. 891 (9th Cir. 2016).

According to Chaker, who contacted PLN, following remand the district court removed the condition to not defame or harass others from the terms of his supervised release in November 2016. 



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Related legal case

United States v. Chaker