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In an important decision for Bloggers Rights, Darren Chaker, who with the help of Cato Institute, ACLU of San Diego, Electronic Frontier Foundation, First Amendment Coalition, and Brechner First Amendment Project was victorious in a First Amendment appeal where the blogger went to jail for protected speech. Since history is written by winners – allow me to write a little…
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.
In this instance Nevada Attorney General Investigator Leesa Fazal of Las Vegas made multiple reports about the blog to her own agency, Las Vegas Metro Police Department, and FBI. “All three agencies declined to arrest Chaker.” See article by Human Rights Defense Center.
The blog about Leesa Fazal was protected speech not only since it did not co constitute defamation or harassment, but it also publicized a matter of public concern. Specifically, Leesa Fazal, a Nevada peace officer, appeared to have been detained by San Diego Sheriff after “she brought a loaded firearm into court, however only California peace officers may do such…” See post.
This was videotaped by DarrenChaker, where Leesa Fazal was taken to an area off limits to the public by a San Diego Sheriff deputy after being told not to leave the building. See https://www.youtube.com/watch?v=v9rGkkh84rg [Link is a public record*, U.S. District Court Nevada Case No. 2:16-cv-00036.] The issue may have been that Leesa Fazal was not a peace officer in the State of California and may (but not sure) have broken the law. Thus, Darren Chaker was also entitled to journalistic protection due to publishing material about a matter of public concern since a peace officer potentially breaking the law “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’” San Diego v. Roe, 543 U.S. 77, 83-84 (2004).
As the Ninth Circuit made it clear in ObsidianFinance Group v. Cox, Nos. 12-35238 & 35319 (9th Cir. Jan 17, 2014), a person need not be employed by the media to be entitled to journalistic protection,
“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of the story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.”
Nonetheless, Darren Chaker’s probation was revoked and an appeal was filed. 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 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.”
* As indicated above, the link to the video and republication of the link/video is within the scope of protected speech as it is already a public record. Barrett v. Rosenthal, 40 Cal. 4th 33, 34, 146 P.3d 510, 513, 51Cal. Rptr. 3d 55, 58, 2006 Cal. LEXIS 13529, 1, 34 Media L. Rep. 2537, 2006Cal. Daily Op. Service 10651, 2006 Daily Journal DAR 15188 (Cal. 2006)