Saturday, July 9, 2016

Darren Chaker WINS FIRST AMENDMENT APPEAL; Free Speech Case; Leesa Fazal; Free Speech Rights; First Amendment Rights

"On the morning of July 7, 2016, the Ninth Circuit reversed a conviction based on First Amendment rights concerning Darren Chaker.

The 
Cato InstituteACLU of San DiegoElectronic Frontier FoundationFirst 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 Mr. Chaker violated probation by posting a blog about Nevada Attorney General Investigator Leesa Fazal, of Las Vegas. A compelling opening brief was filed by 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 opinion, Darren-Chaker-Appeal, where the Ninth Circuit found absolutely no harassment or defamation took place.
Mr. Chaker was on probation for a white collar crime. The record shows Mr. Chaker’s bankruptcy attorney fraudulently filed a bankruptcy petition without Mr. 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, Mr. Chaker was found guilty of only a single charge at trial. That conviction is being challenged.
While on probation, it was alleged Mr. Chaker made a false statement about Leesa Fazal of Las Vegas. “Specifically, Mr. Chaker wrote that Ms. Fazal, an investigator with the Nevada Office of the Attorney General, had previously been “forced out” of the Las Vegas Police Department.” says First Amendment law professor Clay Calvert at the University of Florida’s Marion B. Brechner First Amendment Project.

The blog also addressed the fact Leesa Fazal, a Nevada peace officer, brought her firearm into a San Diego Superior Court while hoping to testify in a family law matter. Leesa Fazal was not allowed to testify, and appears was detained by Sheriff Deputies when told not to leave as she was walking to the exit. It was Mr. Chaker who informed court security she had a firearm on her.

See video https://youtu.be/v9rGkkh84rg [Link is a public record, U.S. District Court Nevada Case No. 2:16-cv-00036.] Scott McMillan, McMillan Law Firm La Mesa, exited the elevator with Ms. Fazal – he apparently may not have advised her she may be breaking the law when they entered court together (but am not sure if she was counseled).
Ms. Fazal complained to the FBI, the Nevada Attorney General, and Las Vegas Metropolitan Police Department and no one arrested or questioned Mr. Chaker.

The Las Vegas Metro Police report stated, in relevant part, “All the evidence was reviewed and does not rise to the level of criminal harassment.”
See,

Leesa Fazal gun stolen out of car
Ms. Fazal then turned to the probation officer who promptly filed a petition and Mr. Chaker was put in jail. The court “had reviewed a police report prepared by the Las Vegas police department after Ms. Fazal reported Mr. Chaker’s blogposts, and noted that the police ultimately did not forward any charges for prosecution concerning Fazal’s allegations.” Opening Brief, page 7.
Ms. Fazal communicated to the probation officer Mr. Chaker may have had something to do with her firearm being stolen out of her car. However, Ms. Fazal’s own Officer Safety Alert stated –  “The suspect is unknown” see excerpt,
Leesa Fazal unknown suspects
During the probation revocation hearing, “At no point did the probation officer or government contend that the blogposts constituted stalking under the condition, nor did the court make any findings as to stalking.  Instead, the focus was on whether the statement was harassment and defamation.” See Opening Brief, page 12.
As the ACLU of San Diego states, “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.” At the hearing, Mr. Chaker admitted he posted the blog after doing online research. It was never proven what Mr. Chaker posted was “a false statement of fact.” Although Ms. Fazal was flown to San Diego and in court, the government did not call her as a witness. The court found Mr. Chaker violated probation, and an appeal ensued.
Cato Institute stated, “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 blogpost, which is the mental requirement necessary to sustain such a charge.” The Electronic Frontier Foundationsaid the government’s position would, “eviscerate a half-century of First Amendment protection of political speech criticizing government officials.”
Probation conditions are typically tailored to protect the public from future crime not online comments one takes offense at or believes are defamatory. It is well established speech “may not be suppressed simply because it is offensive.” Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1199 (9th Cir. 1989). Mr. Chaker was never sued for defamation or harassment by Ms. Fazal.
The blog consisted of about 421 words. Only two words were found to be false – “forced out”.  No evidence was introduced the statement Mr. Chaker made was in fact false, or that Mr. Chaker knew the statement was false – hence actual malice. As page 27 of the opening brief states, “Without actual malice, the speech is protected by the First  Amendment — even if false and damaging to Fazal’s reputation.  See Alvarez, 132 S. Ct.  at 2550-51 (stating that when a false statement is made without actual malice, the best  remedy is not “handcuffs” but publication of “the simple truth”).”
Mr. Chaker is only one of 4,708,100 people are on probation or parole per a Bureau of Justice Statistics report. People under supervised release are not second class citizens where the First Amendment may be marginalized or discarded unless the speech are in an unprotected class – like true threats or inciting criminal conduct. For government to regulate speech, it must be “integral to criminal conduct.” United States v. Meredith, 685 F.3d 814, 819, 2012 U.S. App. LEXIS 13012, 7, 2012-2 U.S. Tax Cas. (CCH) P50,421, 110 A.F.T.R.2d (RIA) 5157 (9th Cir. Cal. 2012) [case cited at page 28 of opening brief] In this case, two words “forced out” were found to be false and Mr. Chaker’s probation was ultimately revoked because of it. 

The Ninth Circuit reversed the district court finding Mr. Chaker violated his probation as no evidence of harassment or defamation was presented to the court."
The Ninth Circuits YouTube Channel is revealing how the court responded to the Governments argument, https://www.youtube.com/watch?v=bMECNd143uc 

15:33 Judge Kozinski to AUSA “she [sentencing judge] did say I am not going to limit your [Chaker’s] First Amendment rights?” AUSA, “that’s correct your honor”;

20:08 Judge Kozinski told the AUSA to go back to her office and watch oral argument with her colleagues to be "properly embarrassed";

23:16 Judge Kozinski to ASUA - “You managed to bamboozle…I mean the United States, managed to fool the district judge imposing the condition…”;

26:31 Judge Kozinski, “It’s okay for the district court to say obey all laws...but this is not at all limited to criminal conduct…this is conduct that is not illegal…agree this is conduct that is not illegal?", reluctantly AUSA said "agreed that the condition reached conduct that is not illegal."


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