First Amendment Experts Question Court’s Clampdown on Political Speech

 


A coalition committed to  freedom of speech online, including the ACLU of San Diego & Imperial Counties, filed a friend-of-the-court brief with the U.S. Court of Appeals for the Ninth Circuit on Friday condemning the punishment of a blogger for criticizing a public official.

The ACLU of San Diego & Imperial Counties, Cato Institute, Marion B. Brechner First Amendment Project, Electronic Frontier Foundation, First Amendment Coalition, and the law firm Wilmer Cutler Pickering Hale and Dorr LLP argue that a federal district court violated the First Amendment in punishing Darren Chaker for violating conditions of release that prohibited “defamation” or “disparagement” of anyone online, including public officials.

The case goes to the core of the First Amendment. Darren Chaker, a self-described “avid blogger on criminal justice, record sealing, and First Amendment issues,” posted on his personal blog a statement concerning the professional experience and performance of a public official, an investigator with the Nevada Office of the Attorney General. In his blog he said she had been “forced out” of the Las Vegas Police Department. People can argue about whether this statement was true or false, but it was classic political speech, subject to the highest level of First Amendment protection, because nothing is more important to the First Amendment than the right to comment on public officials.

However, a San Diego district court judge found that Mr. Chaker violated a condition of supervised release from a previous conviction that provided he “may not 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.”

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. The court then reimposed the original condition against defamation, and added new conditions that Chaker could not “disparage or defame others on the internet” or send anonymous emails or post false information.

According to the brief, the district court’s decision violated the First Amendment in multiple ways. First, the condition against “disparagement” is excessively vague and deters important speech of public concern for no legitimate reason.

Second, the conditions against “defamation” and “disparagement” discriminate based on the viewpoint of speech by punishing criticism but not praise of public officials.

Third, 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.

Fourth, the complexity of defamation law undermines judicial economy in revocation hearings by requiring in-depth factual and legal analysis of the speech and its context.

Fifth, the court imposed overbroad conditions against posting “false” or “private” information without regard to fault or public concern.

“In a criminal case, the government has legitimate interests in deterrence and rehabilitation, but they cannot trump the core First Amendment right to pure political speech online,” said David Loy, legal director of the San Diego ACLU. “Nor can a court exempt this case from the First Amendment simply by labeling speech as ‘harassment.’ Regardless of labels, the First Amendment prohibits punishment for criticizing a public official without stringent proof utterly missing from this case.”

Because political speech is at the heart of our democratic system, speech that is critical of government actions and actors is afforded the highest degree of protection. The First Amendment particularly protects criticism of law enforcement officers. In Chaker’s case, the person he is accused of defaming is a state investigator and former local police officer. Thus, Chaker’s critique of her abilities and performance fits squarely within First Amendment protections.

Further, because the court’s orders were so vague, an individual on supervised release would likely be encouraged to stay far away from speech that might land him or her in hot water. The brief cites a Supreme Court case, U.S. v. Stevens, saying, “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige…” and a court should “not uphold an unconstitutional condition merely because the Government promised to use it responsibly.” This is especially true in Chaker’s case, because a condition for his release is based on a vague and undefined term—what exactly a “disparaging remark” might be.

The friend-of-the-court brief was filed on September 4, 2015, and called on the appellate court to reverse the district court’s earlier decision.