First Amendment and False Complaints

The R.A.V. factors are not applicable because section 148.6(a) discriminates on the basis of viewpoint.

Darren Chaker defended the decision of the Ninth Circuit where it decided an important question concerning viewpointdiscrimination. Like the statute at issue in R.A.V. v. City of St. Paul, the Ninth Circuit found that section 148.6 “impermissibly regulates speech on the basis of a speaker’s viewpoint.”  Chaker v. Crogan, 428 F.3d at 1228.  Recognizing that California’s rationale in enacting section 148.6 was to save valuable public resources and to maintain the integrity of the complaint process, the Ninth Circuit accurately noted that “a peace officer or witness who lies during an investigation is equally to blame for wasting public resources by interfering with the expeditious resolution of an investigation.”  Id. at 1226.  Yet, section 148.6 only subjects those individuals that complain of peace officer misconduct to criminal liability. 
Accordingly, the Ninth Circuit correctly held that the selective targeting under section 148.6 of only speech reflecting a particular viewpoint (here, that which is critical of peace officers) was impermissible viewpoint discrimination.  Having made such a determination, the court need not have addressed the three R.A.V. categories that render mere content regulation permissible under the First Amendment.  Id. at 1228 n.10.

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