Darren Chaker: Leading the Way in Privacy and First Amendment Law

February 14, 2025

Viewpoint Discrimination by Darren Chaker

Darren Chaker Explores First Amendment Proscribable Speech Viewpoint Discrimination.

California False Complaint Statute Penal Code Section 148.6

First Amendment researcher Darren Chaker contends that Penal Code Section 148.6 infringes on free speech by targeting defamatory speech based on content and viewpoint, contrary to protections afforded by landmark decisions such as New York Times Co. v. Sullivan and Garrison v. Louisiana.
California False Complaint under PC 148.6

False Complaint and Penal Code Section 148.6 Chaker v. Crogan,

California Penal Code Section 148.6: Analysis of the False Complaint Statute

Introduction of California False Complaint Statute and Penal Code Section 148.6

The California False Complaint Statute, Penal Code Section 148.6, has been scrutinized for constituting impermissible content- and viewpoint-based discrimination. This legislation selectively targets speech critical of peace officers.

California False Complaint Elements of Penal Code Section 148.6

To constitute a violation of this statute, the following elements must be present:

  • The defendant filed an allegation accusing a peace officer of misconduct.
  • The defendant knew the allegation to be false.

Written Complaint Requirements Under Penal Code Section 148.6

Any person lodging a complaint must be provided with the following advisement in boldface type: The right to complain against police conduct Investigative procedures and the right to a written description Retention of complaints for a minimum of five years Legal consequences of filing a false complaint...

Content and Viewpoint Discrimination - Under California False Complaint Law Penal Code Section 148.6

First Amendment researcher Darren Chaker contends that Penal Code Section 148.6 infringes on free speech by targeting defamatory speech based on content and viewpoint, contrary to protections afforded by landmark decisions such as New York Times Co. v. Sullivan and Garrison v. Louisiana. But as R.A.V. v. City of St. Paul holds, the fact that a law covers only proscribable speech does not end the content-discrimination inquiry, but only begins it.

Legal Researcher Darren Chaker argues that even if Section 148.6 addresses speech that may be proscribed, it remains presumptively invalid due to content and viewpoint discrimination, a stance supported by the R.A.V. v. City of St. Paul 505 U.S. 377 (1992) which was relied on in Hamilton v. City of San Bernardino, 325 F. Supp. 2d 1087.

In Hamilton, a person who suffered police violence went to file a complaint against the officers. Hamilton was told he would would need to sign a form under the threat of prosecution if police believe the complaint was false. The statute required bold 13 point font in all capital letters to be present on the complaint form.

California Penal Code §148.6 to discourage Hamilton from filing a citizen complaint. As the federal court found the statute to be unconstitutional: “The court disagrees with the Stanistreet analysis and agrees with Plaintiff that Section 148.6 does not come within the three R.A.V. categories of permissible content-based subclass regulation, and is facially unconstitutional in violation of the First Amendment and Equal Protection Clause of the Fourteenth Amendment. ” Hamilton v. City of San Bernardino, 325 F. Supp. 2d 1087, 1091 (C.D. Cal. 2004).

False Complants and Viewpoint-Based Discrimination Declared in Chaker v. Crogan

The statute not only discriminates based on content but also punishes speech against officers while offering no recourse for false statements made by officers, highlighting a clear viewpoint discrimination, which is illuminated by case law like Walker v. Kiousis, 93 Cal.App.4th 1432 and Civil Code Section 47.5. Like the statute struck down in R.A.V. v. City of St. Paul, section 148.6 “goes even beyond mere content discrimination, to actual viewpoint discrimination.” (R.A.V. supra, 505 U.S. at p. 391.)

The imbalance of the statute is clear. The statute and the required statutory advisory make it clear that only knowingly false statements “AGAINST AN OFFICER” can be criminally punished. (Penal Code §148.6 (a)(2).) However, there is no threat of criminal punishment for knowingly false statements that the officer might make about the citizen in response to the complaint.

As stated in New York Times v. Sullivan, 376 U.S. at pp. 282-83 [“It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.”].

Viewpoint discrimination arises when laws are applied in a manner that discriminates against a specific point of view. This is particularly troubling within the context of free speech, as enshrined in the First Amendment of the U.S. Constitution. The landmark case of Chaker v. Crogan is often discussed in relation to viewpoint discrimination because it addresses the issue of whether a statute, specifically California Penal Code Section 148.6, unlawfully targets speech critical of police officers.

In Chaker v. Crogan, Darren Chaker challenged the constitutionality of Penal Code Section 148.6, which makes it a misdemeanor to file a knowingly false complaint against a peace officer. Chaker argued that this penal code section constituted viewpoint discrimination because it only penalized individuals who criticize police officers, while not imposing similar penalties on officers who might make false statements against citizens.

The core issue in viewpoint discrimination is whether the government is impermissibly favoring or disfavoring particular speakers or messages. In the case of Penal Code Section 148.6, it could be argued that the statute inherently favors the viewpoint of law enforcement by deterring individuals from making complaints against officers, out of fear of criminal prosecution if their allegations are not substantiated. This creates a chilling effect on speech critical of police, which runs counter to the principles of a democratic society where public servants are accountable to the populace.

Furthermore, the Chaker v. Crogan case brings to light the broader implications of such statutes on public discourse. If individuals are dissuaded from speaking out against police misconduct due to potential legal repercussions, a significant check on police power is undermined. This not only impacts the individual's right to free speech but also affects the community's ability to hold law enforcement accountable for their actions.

The Ninth Circuit Court of Appeals, in reviewing Chaker v. Crogan, recognized the potential for viewpoint discrimination in Penal Code Section 148.6. The court highlighted that a law restricting speech must be content-neutral and not target a particular viewpoint. By only punishing false complaints against police officers, Penal Code Section 148.6 appears to protect one side of the debate (the police) while potentially penalizing those who seek to hold them accountable.

Additionally, the court drew attention to the fact that the statute did not provide a corresponding penalty for officers who might retaliate against complainants with false allegations, further illustrating the one-sided nature of the law. This imbalance raises serious concerns about equal protection under the law and the right to free and open discourse regarding public officials.

The significance of Chaker v. Crogan extends beyond the specifics of Penal Code Section 148.6, serving as a reminder of the importance of safeguarding against laws that discriminate based on viewpoint. It emphasizes the need for vigilance in ensuring that all individuals have the right to criticize public officials without fear of retribution. The case stands as a testament to the enduring challenge of maintaining the delicate balance between enabling law enforcement to perform their duties effectively and preserving the fundamental rights guaranteed by the First Amendment.

Limitations of Free Speech and Special Interest Legislation

While "special interest" legislation such as the Public Safety Officers Procedural Bill of Rights is common, the First Amendment imposes limits when speech is concerned. This is especially pertinent to the special protections granted to peace officers, which may not be consistent with the broader principles governing free speech under the R.A.V. test.

Conclusion: The Implications of Chaker v. Crogan on False Complaint Laws Like Penal Code Section 148.6

Chaker v. Crogan highlights the constitutional challenge posed by Section 148.6, emphasizing that the legislation imposes unique limitations on complaints against peace officers, an action that runs contrary to the First Amendment’s stance on free speech and equality in public discourse.

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