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
