Blogger Darren Chaker Jailed - Conviction Reversed - ACLU Cato Institute Backed

The ACLU, Cato Institute, Electronic Frontier Foundation, University of Florida, First Amendment Coalition, and other organizations supported blogger Darren Chaker on appeal where a criminal defamation condition was implemented as a condition of probation for a white collar crime conviction.

Darren Chaker was on probation for a white collar crime. The record shows his bankruptcy attorney fraudulently filed a bankruptcy petition without Darren Chaker’s knowledge. The report states in part, “In my opinion Chaker’s attorney did not exercise a reasonable standard of care in filing a Second Bankruptcy Case without Chaker’s consent and signature. Indeed, in my opinion such conduct is fraudulent.”  See expert report, page 7.  Despite the conduct of his bankruptcy attorney, Darren Chaker was found guilty of only a single charge at trial. That conviction is being challenged. After serving a few months in minimum security, then house arrest, Darren Chaker started probation.

The Human Rights Defense Center published an article about this case saying in part, “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”

The article continues to state the “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.” The fourth law enforcent agency to receive a complaint was Mr. Chaker’s probation officer. 

Ultimately, Darren Chaker’s probation was revoked and an appeal was filed. The government did not provide any evidence to the court the statement was defamatory. The court opinion for Chaker v. US, 15-50138 / No. 15-50193, stated, “Chaker’s blog post, which claimed that former police investigator Leesa Fazal “was forced out of the Las Vegas Metro Police Department,” does not qualify as harassment.” Tellingly, the court found, “The government also failed to prove that Chaker’s blog post satisfied the elements of defamation, including falsity and actual malice. See N.Y. Times Co. v. Sullivan, 376 U.S. 254 279–80 (1964).”

As reported by the Cato Institute in a post appeal article, “Chaker notes on his personal blog that he is “only one of 4,708,100 people are on probation or parole.” Millions of individuals’ political speech could have been swept up under the precedent set by the lower court’s outrageous decision….The decision in Chaker v. United States is thus a victory for First Amendment advocates and political activists everywhere. It protects the rights of even the most downtrodden and implicitly applies the correct defamation standard to political speech aimed at public officials.”

Oral argument may be found on the Ninth Circuit’s YouTube Channel, ​some excerpts include,

• 20:08 is where Judge Kozinski told the prosecutor to go back to her office and watch oral argument with her colleagues to be “properly embarrassed”;
• 23:16 Judge Kozinski told prosecutor - “You managed to bamboozle…I mean the United States, managed to fool the district judge imposing the condition…”
• 25:58 Prosecutor tries to not answer question by stating “I see I’m out of time”, Judge Kozinski replied, ”oh no you’re not, you’re going to have to keep talking”
• 26:31 Judge Kozinski, “this is conduct that is not illegal”, prosecutor “agreed that the condition reached conduct that is not illegal.”

Darren Chaker spent months in jail for protected speech – speech which was punished simply a cop’s reputation was at issue and the fourth law enforcement agency Ms. Fazal went to finally put Mr. Chaker in jail. As we saw in USA v. Alvarez, where the Supreme Court found the Stolen Valor Act to be unconstitutional - reputation is not a government interest.​

See the ACLU press release here, and post about this case,

https://www.aclusandiego.org/first-amendment-experts-question-courts-clampdown-on-political-speech/

https://www.prisonlegalnews.org/news/2016/feb/3/ninth-circuit-appeal-challenges-probation-revocation-exercising-first-amendment-rights/ 

https://www.eff.org/deeplinks/2015/12/internet-free-speech-people-supervised-release-prison 

http://www.cato.org/publications/legal-briefs/united-states-v-chaker 

https://www.jou.ufl.edu/news/2015/09/09/brechner-first-amendment-project-joins-amicus-brief-in-california/

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