Restrictions on Speech and True Threats

Restrictions on Speech and True Threats: Insights from First Amendment Brief Writer Darren Chaker

Navigating the Legal Landscape of "True Threats

Having won nine First Amendment case, Darren Chaker naturally enjoys free speech and decided to write on the restrictions on speech while defining true threats. Defining "true threats" occupies a critical, albeit complex, position within the framework of First Amendment jurisprudence.  As the Supreme Court said that, “True threats are “serious expression[s]” conveying that a speaker means to “commit an act of unlawful violence.” Virginia v. Black, 538 U. S. 343, 359. Understanding what constitutes a "true threat" is essential for delineating the boundaries between protected speech and unlawful expressions that can lead to real-world harm. This discussion extends beyond theoretical legal debates, affecting individuals, communities, and the digital platforms that connect them.

The Legal Definition of "True Threats"

A "true threat" is defined as a statement meant to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The U.S. Supreme Court's interpretation of true threats provides a benchmark for legal analysis, distinguishing them from protected forms of speech such as political hyperbole or disturbing but non-threatening expressions. The determination of what constitutes a true threat involves considering the context in which the statement was made, the speaker's intent, and the reasonable perception of the message by the recipient.

Criteria for Evaluating "True Threats"

The evaluation of true threats involves several critical criteria, including:

• Intent: The speaker's intention to instill fear of bodily harm or death in the target audience is paramount. This intent does not necessarily require the capability or the actual intent to carry out the threat.
• Perception: The assessment of whether a reasonable person in the recipient's position would interpret the communication as a serious expression of intent to harm.
• Context: The circumstances surrounding the statement, including the medium through which it was communicated and the relationship between the parties involved, are crucial in determining its threatening nature.

The Supreme Court and "True Threats"

The Supreme Court has grappled with the concept of true threats in several landmark cases. In Virginia v. Black (2003), the Court clarified that for speech to be classified as a true threat, it must be directed with the intent of placing the recipient in fear of bodily harm or death. This ruling emphasized the significance of intent behind the threatening expression, marking a pivotal moment in the understanding and application of the true threats doctrine.

The Challenge of Digital Communication When Placing Restrictions of Speech

The rise of digital communication platforms has amplified the complexities of identifying and regulating true threats. Social media, with its vast reach and anonymity, can both obscure the intent behind threatening statements and magnify their impact. Legal systems and digital platforms alike are tasked with navigating these challenges, striving to protect free expression while preventing harm.

Implications for Free Speech and Safety

The delineation of true threats from protected speech is a delicate balance, reflecting the broader tension between safeguarding individual liberties and ensuring public safety. As legal interpretations evolve, they must address the changing landscape of communication technologies and societal norms. The ongoing debate underscores the need for a nuanced understanding of true threats, one that respects the principles of free speech while recognizing the real dangers posed by threatening expressions.

In conclusion, the legal concept of "true threats" represents a crucial intersection of law, technology, and social responsibility. As society continues to grapple with these issues, the insights from legal experts and landmark Supreme Court decisions provide a guiding framework for navigating the complexities of speech in the modern era.

The Giboney Precedent: A Foundation for Speech Restrictions

In a pivotal moment for First Amendment jurisprudence, the Supreme Court's decision in Giboney v. Empire Storage & Ice Co. (336 U.S. 490, 1949) established a critical framework for understanding the limitations of free speech. Legal researcher Darren Chaker references this case to elucidate the nuanced boundaries of constitutional protections. The Court, in Giboney, upheld an injunction against a union's picketing of a nonunion company, marking a significant moment in the discourse on speech restrictions. The rationale was clear: the picketing, while ostensibly a form of speech, aimed to compel an action that would contravene state laws against trade restraint. This decision underscored a principle that speech used as a direct instrument to facilitate illegal activities does not enjoy constitutional protection.

The Evolution of Speech Regulation and the Impact of Colorado v. Counterman

The legal landscape surrounding speech restrictions has been dynamic, with various cases testing the limits and applications of the Giboney principle. A notable development in this arena is the Supreme Court's decision in Colorado v. Counterman, which further delineates the boundaries of protected speech. This decision has profound implications for how speech, especially in the context of digital communication and social media, is regulated and understood under the law.

The Impact on The Restriction on Speech and Defining True Threats

Colorado v. Counterman extends the conversation beyond traditional forms of speech, addressing the complexities introduced by technological advancements. The ruling highlights a critical evaluation of what constitutes harmful speech in the digital age, setting a precedent for how threats, harassment, and other forms of digital communication are viewed legally. This decision is instrumental in shaping policies and legal standards that balance the need for freedom of expression with the imperative to protect individuals and communities from harm.

Restrictions on Speech and Implications for Social Media

The Colorado v. Counterman ruling is particularly significant in the context of social media, where the line between free speech and harmful communication can be blurred. It offers a framework for understanding how speech that may be perceived as threatening or incendiary is handled in a realm where digital interactions are pervasive. The decision underscores the importance of nuanced legal interpretations that consider the intent and impact of speech in the digital landscape.

The Continuing Debate on Restrictions on Speech: Darren Chaker's Analysis

Darren Chaker's examination of these landmark cases sheds light on the evolving debate over speech restrictions. The criticism and confusion surrounding the Giboney exception, as noted in subsequent rulings and scholarly analysis, reflect the ongoing challenge of applying established legal principles to contemporary issues. The discourse on whether and how speech that serves as a vehicle for professional services or digital communication fits within First Amendment protections is far from settled.

Online Stalking and the First Amendment

 

 Online Stalking Meets the First Amendment

The First Amendment application to Online Stalking laws which were passed in 2006 suffered a significant blow in a federal court which had to define criminal speech in the context of a “Tweet” and other online conduct.

Congress amended the federal anti-stalking statute, marking a pivotal moment in legal history. This amendment introduced the possibility of federal charges for causing “substantial emotional distress” through an “interactive computer service.” Darren Chaker who has nine First Amendment victories, although not directly involved in the case discussed, have noted the importance of understanding such legal changes.

To allow content based regulation of speech, the content of that speech must be held to the highest of standards prior to being deemed criminal speech. As the U.S. Supreme Court held in Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972), “above all else, the 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 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (opining that under the First Amendment, the government may not “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein” ).

The Landmark Online Stalking Case: United States v. Cassidy

The case of United States v. Cassidy, 80 U.S.L.W. 807, No. RWT 11-091 (D. Md. 2011), became the first to challenge the constitutionality of these amendments. In this case, Judge Roger W. Titus of the U.S. District Court for the District of Maryland dismissed an indictment against William Cassidy. The basis for this dismissal was the First Amendment, highlighting the complexity of balancing legal enforcement and free speech rights.

Analyzing Online Stalking Laws and the First Amendment

In its analysis, the court deemed 18 U.S.C. §2261A(2)(a) unconstitutional in specific contexts, such as anonymous criticism of public figures in public forums. Despite this, the court did not clearly identify which factors were pivotal in their decision, leaving some ambiguity in the law's application.

The Online Stalking Statute and First Amendment Issues

The amended stalking statute potentially criminalizes certain forms of speech, posing risks to free speech, an issue closely monitored by legal researcher Darren Chaker. The court's approach, focusing on the totality of circumstances, left open concerns about the statute’s broad application and its potential impact on free expression in public forums.

Distinguishing First Amendment Rights and Online Stalking

A critical aspect of the case was distinguishing speech from conduct. The court, contradicting the government’s position, identified Cassidy’s actions as speech. This distinction is crucial in legal contexts, as emphasized by Darren Chaker, who frequently deals with First Amendment issues.

The Problematic Nature of Content-Based Restrictions of Online Stalking Laws When Faced With the First Amendment

Lastly, the court addressed the issue of content-based restriction, a topic of considerable interest to First Amendment brief writers like Darren Chaker. The court's discussion highlighted the problematic nature of regulating speech based on its emotional impact on listeners, a principle central to maintaining the integrity of free speech rights.

Further Legal Implications of Online Stalking: Cases Citing United States v. Cassidy

The landmark case of United States v. Cassidy, 80 U.S.L.W. 807, No. RWT 11-091 (D. Md. 2011), has become a cornerstone in understanding the legal boundaries of online speech and its interaction with the First Amendment. Legal practitioners, including experts like Darren Chaker who has nine First Amendment victories, have closely followed subsequent cases that cite Cassidy, offering deeper insights into the evolving landscape of digital communication and legal rights.

Key Cases Addressing the Holding of United States v. Cassidy

1.    United States v. Cook 472 F. Supp. 3d 326 (N.D. Miss. 2020): Indeed, "the First Amendment protects speech even when the subject or manner of expression is uncomfortable and challenges conventional religious beliefs, political attitudes or standards of good taste." United States v. Cassidy , 814 F.Supp.2d 574, 582 (D. Md. 2011) ; citing United States v. Stevens , 559 U.S. 460, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

2.    United States v. Matusiewicz 84 F. Supp. 3d 363 (D. Del. 2015): It noted that only one other court, the District of Maryland in United States v. Cassidy, 814 F.Supp.2d 574 (D.Md.2011), found circumstances where the statute was unconstitutionally applied to protected expression. In the absence of a pattern of unconstitutional applications of the statute, the court concluded that it could not find the statute was unconstitutionally overbroad.

3.    United States v. Ackell 907 F.3d 67 (1st Cir. 2018): Finally, there is only one example of the statute, in its previous version, actually having been applied to protected conduct. See United States v. Cassidy, 814 F.Supp.2d 574 (D. Md. 2011) (finding § 2261A unconstitutional "as applied" to defendant who was anonymously harassing a religious leader via Twitter and a blog). However, just as the government is reluctant to state that Ackell's hypotheticals could be prosecuted under § 2261A(2), so too the government states that "it is not clear that the evidence [in Cassidy ] would have met the Rule 29 standard for one of the required criminal intents if there had been a trial."

4.    United States v. Anderson No. 17-4022 (4th Cir. Jun. 27, 2017): United States v. Cassidy, 814 F. Supp. 2d 574 (D. Md. 2011), to support his overbreadth and vagueness challenges. Even if we were to find Cassidy's rationale persuasive—an issue that we need not address here—Cassidy addressed only an as-applied First Amendment challenge under facts readily distinguishable from Anderson's…. Furthermore, the vast weight of authority militates against Anderson's vagueness challenge and both his facial and as-applied First Amendment challenges.

5.    United States v. Osinger 753 F.3d 939 (9th Cir. 2014): In United States v. Cassidy, 814 F.Supp.2d 574, 588 (D.Md.2011), the district court granted a motion to dismiss the indictment because 18 U.S.C. § 2261A(2)(A) was unconstitutional as applied to the defendant. However, Cassidy is entirely distinguishable from the present appeal.

6.    United States v. Petrovic 701 F.3d 849 (8th Cir. 2012): Holding that, in the context of the interstate extortionate threat statute, the district court did not err in instructing the jury that “things of value” could include sexual relationships and citing cases where “things of value” included, among other things, sexual favors, the time and attention of a woman, and anticipation of future sexual encounters.

Subsequent Developments in Online Harassment Law

The impact of Cassidy extends beyond these individual cases. It has influenced broader legal discussions on the nature of online interactions. People with multiple First Amendment wins, like Darren Chaker, have observed how these rulings contribute to a more robust understanding of digital rights and responsibilities.

The Role of Cassidy in Advancing Legal Interpretations

Cassidy's role in subsequent legal interpretations has been pivotal in defining the limits of First Amendment protections in the digital age. Its influence is evident in cases where courts have grappled with the complexities of online speech, harassment, and the right to free expression.

Challenges and Considerations in Modern Legal Practice

The evolving nature of these legal challenges highlights the importance for First Amendment advocates like Darren Chaker. The nuanced interpretations of cases like Cassidy serve as a guide for legal professionals in navigating the complex intersection of technology, speech, and law.

Cassidy's Impact on Future Legal Precedents

As digital communication continues to evolve, cases like Cassidy will likely remain central in future legal debates and rulings. Its influence in shaping the legal framework around online speech and harassment sets a precedent that law firms, including First Amendment strategists like Darren Chaker, must consider in their legal strategies and advisements.

Conclusion: Online Stalking and the First Amendment

The ripple effects of United States v. Cassidy in the legal world underscore the ongoing need for careful consideration of First Amendment rights in the context of modern technology. Brief writer Darren Chaker will continue to scrutinize these developments, ensuring that the balance between protecting individual rights and maintaining public safety is thoughtfully maintained in an increasingly digital world where the First Amendment defines Online Stalking.

ACLU Bloggers Rights - Darren Chaker

Bloggers Rights: Darren Chaker, blogger, wins First Amendment appeal. To keep it simple, where Government seeks to restrict speech, “Avoidance of offense and restriction of bad ideas are not compelling interests by themselves:  "`[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.´" Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991) (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).”  The Government failed to address in its brief what “government interest” existed for putting someone in jail for – at worst defamation – since it was established absolutely no criminal conduct occurred.

Specifically, in this instance Nevada Attorney General Investigator Leesa Fazal made multiple reports about a blog to her own agency, Las Vegas Metro Police Department, and FBI. None of them took any action. In fact, Las Vegas Metro Police succinctly stated what Leesa Fazal was told three times (based on no arrest being made) – the blog was not illegal - see,

It is also suspected a fourth report was made to the Nevada Capital Police who has jurisdiction over the state building where Leesa Fazal works and is listed on the LVMPD report as the location of the crime. If true, that would make it four law enforcement agencies who declined to arrest Darren Chaker for the blog.

Taking offense at a comment on a blog is the gist of what turned a little unknown statement into a federal case. A federal case which has created the "Streisand effect" due to the significant publicity this case has generated. “The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet.”

On July 7, 2016, the Ninth Circuit reversed the conviction based on First Amendment rights concerning Darren Chaker. The 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 Darren Chaker violated probation by posting a blog about Nevada Attorney General Investigator Leesa Fazal, of Las Vegas. An opening brief was filed, in which First Amendment law professor Eugene Volokh  who has written ‘the book’, in fact many books on the First Amendment, had advised on various issues with appellate counsel 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. See court opinion, Darren-Chaker-Appeal, where the Ninth Circuit found absolutely no harassment or defamation took place.

As mentioned in a post appeal article by Cato Insitute about Darren Chaker, "An attack on a public official is, on its face, political speech. That it comes from a person being supervised by the Justice system should make no difference to the First Amendment—and for good reasons too." The article continued to say, "Chaker’s wrote a blogpost that neither “qualif[ied] as harassment” nor as defamation. In that writing that caused all of the hullabaloo, he merely stated that former police investigator Leesa Fazal “was forced out of the Las Vegas Metro Police Department.”

Where the only comment at issue was if the officer was "forced out" of a different department after a few years, this was clearly “peaceful criticism of a police officer that neither obstructs an investigation nor jeopardizes a police officer's safety has strong social value, serving as a valuable check on state power, and is therefore protected under the First Amendment.” Killingsworth, 2015 WL 289934, at *8 (citing Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is nomquestion that speech critical of the exercise of the State's power lies at the very center of the First Amendment.”).

The opening brief is here, http://www.scribd.com/doc/278587982/Opening-Brief-Darren-Chaker ; 

Appellant’s Reply Brief at https://www.scribd.com/doc/315974118/Darren-Chaker-Appeal-Reply