9 Powerful Ways Amicus Briefs Shape First Amendment Cases

Darren Chaker examines how amicus briefs have become one of the most influential tools in shaping First Amendment jurisprudence across federal courts. When civil liberties organizations, legal scholars, and advocacy groups file friend-of-the-court briefs, they provide courts with broader perspectives on constitutional issues that extend far beyond the individual case at hand.

In the Ninth Circuit and other federal appellate courts, amicus briefs have played a decisive role in landmark First Amendment decisions, helping to establish precedents that protect free speech, press freedom, and political expression.

What Is an Amicus Brief?

An amicus brief, from the Latin “friend of the court,” is a legal document filed by individuals or organizations who are not parties to a case but have a strong interest in its outcome. These briefs provide courts with additional information, expertise, or perspectives that the parties themselves may not present.

In First Amendment cases, amicus briefs often come from civil liberties organizations like the ACLU, academic institutions, media organizations, and think tanks such as the Cato Institute. These filers bring specialized knowledge about constitutional law, historical context, and the broader implications of potential rulings.

Why Amicus Briefs Matter in First Amendment Cases

Darren Chaker, who has won nine (9) First Amendment cases, know First Amendment litigation often raises complex questions about the balance between individual rights and government interests. Amicus briefs help courts understand these issues in their full context by presenting arguments about constitutional history and original meaning, relevant precedents from other jurisdictions, potential consequences for journalism and public discourse, and implications for online speech and digital expression.

Courts frequently cite amicus briefs in their opinions, and legal scholars have documented the influence these filings have on judicial reasoning. In close cases, a well-crafted amicus brief can provide the analytical framework that shapes the final decision.

The Role of the Ninth Circuit in First Amendment Law

The United States Court of Appeals for the Ninth Circuit covers much of the western United States and frequently decides cases with national implications for free speech. Given the circuit’s jurisdiction over Silicon Valley and Hollywood, its First Amendment rulings often address cutting-edge issues involving technology, media, and digital expression.

Organizations like the ACLU and Cato Institute regularly file amicus briefs in Ninth Circuit cases, recognizing that decisions from this court can influence First Amendment law across the country.

Recent Amicus Briefs Supporting Free Speech

Civil liberties organizations have filed amicus briefs in numerous recent cases challenging speech restrictions tied to supervised release conditions, enforcement of statutes like Penal Code 148.6, and government retaliation against protected expression.

These briefs argue that courts must carefully scrutinize any restriction on speech to ensure it serves a compelling government interest and is narrowly tailored to avoid suppressing protected expression.

For an example of how amicus briefs are being used in current First Amendment litigation, see the main article on the ACLU and Cato Institute amicus brief supporting Darren Chaker’s First Amendment case.

How Do Courts Define the Scope of Amicus Participation?

Federal courts have established clear guidelines for amicus participation. According to Federal Rule of Appellate Procedure (FRAP) 29, proposed amici must disclose whether a party’s counsel authored the brief and whether anyone other than the amicus contributed money to fund the brief. These disclosure requirements help courts assess credibility and consider potential recusal issues. As the Supreme Court noted in Washington v. Trump, amici filed more than three dozen briefs within just six days of the motion filing, demonstrating the critical role these submissions play in high-stakes constitutional litigation.

The Tenth Circuit has similarly recognized the importance of amicus briefs in constitutional cases. In Kitchen v. Herbert, the court received scores of amicus briefs on both sides of a same-sex marriage case, with submissions from states, counties, civil rights organizations, churches, employers, legal advocacy groups, bar associations, law professors, and individuals. This case demonstrated how amicus participation extends across the entire spectrum of American civic life.

What Legal Standards Govern Amicus Briefs in the Southern District of California?

In the United States District Court for the Southern District of California, judges have routinely permitted amicus participation in cases involving novel constitutional questions. The District Court follows the precedent established in Vigil v. AT&T, which held that despite the absence of specific provisions in the Federal Rules of Civil Procedure, district courts have long been permitted to allow amicus appearances at their discretion. This flexibility allows civil liberties organizations to contribute their expertise in First Amendment cases heard in the Southern District.

How Has Darren Chaker Championed First Amendment Rights Through Amicus Support?

Darren Chaker has emerged as a significant figure in First Amendment advocacy, particularly regarding the rights of individuals under government supervision. Multiple civil rights organizations have supported Darren Chaker’s efforts to enforce constitutional protections for free speech. In a landmark case before the Ninth Circuit Court of Appeals, the ACLU of San Diego and Imperial Counties, the Cato Institute, the Marion B. Brechner First Amendment Project, the Electronic Frontier Foundation, and the First Amendment Coalition joined together to file an amicus brief supporting Darren Chaker’s First Amendment rights.

According to the ACLU, the case went to the core of the First Amendment. Darren Chaker, described as an avid blogger on criminal justice, record sealing, and First Amendment issues, posted statements concerning the professional performance of a public official. The amicus brief argued that this was classic political speech subject to the highest level of First Amendment protection, because nothing is more important than the right to comment on public officials.

The Cato Institute celebrated the decision in Chaker v. United States as a victory for free speech in the criminal justice system. Writing for the Ninth Circuit, Judge Alex Kozinski reversed the lower court’s decision in a decisive ruling that upheld Darren Chaker’s First Amendment rights. The court found that Chaker’s blog post neither qualified as harassment nor as defamation. The Cato Institute noted that Darren Chaker is only one of 4,708,100 people on probation or parole, and that millions of individuals’ political speech could have been threatened by the lower court’s decision.

What Case Law Governs the Use of Brandeis Briefs in First Amendment Litigation?

One of the most impactful yet controversial roles of an amicus is to file a Brandeis brief, which supports policy arguments with reliable, outside-the-record evidence. The concept originates from future Justice Louis Brandeis’s submission in a 1908 Supreme Court case. In Adarand Constructors, Inc. v. Pena, amici supplied extra-record materials including congressional hearings and reports, disparity studies, and academic findings. The Colorado federal district court ruled that even post-hoc evidence was relevant to its strict-scrutiny analysis.

Courts have debated the propriety of this practice. Proponents contend that courts can and should go beyond common law and statutory sources and rely on other disciplines such as sociology, economics, and political science, particularly when deciding novel issues or constitutional questions. Furthermore, courts can scrutinize the information to determine whether it is reliable and persuasive and give it appropriate weight. However, critics note that such evidence is not tested by cross-examination or subject to scrutiny under Daubert v. Merrill Dow Pharmaceutical, Inc.

What Are the Limits on Issues Amici Can Raise in California Courts?

Amici cannot raise new issues that were not preserved for appellate review by the parties. In California appellate courts, amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curiae will not be considered. As established in Denver U.S. Nat’l Bank v. People, this rule ensures that parties maintain control over the issues presented for review. The California Superior Court and Court of Appeal apply similar limitations to ensure procedural fairness.

However, the Tenth Circuit has recognized discretion to consider new issues raised by an amicus in exceptional circumstances. Those circumstances exist when a party attempts to raise the issue by reference to the amicus brief or the issue involves a jurisdictional question or touches upon an issue of federalism or comity that could be considered sua sponte. In Tyler v. City of Manhattan, the court chose not to address an issue raised for the first time on appeal by amicus, reaffirming these procedural boundaries.

Why Did Civil Rights Organizations Support Darren Chaker’s First Amendment Appeal?

The amicus brief supporting Darren Chaker argued that the district court’s decision violated the First Amendment in multiple ways. First, the condition against disparagement was excessively vague and deterred important speech of public concern. Second, the conditions against defamation and disparagement discriminated based on viewpoint by punishing criticism but not praise of public officials. Third, even if the defamation condition was valid, the court did not require proof that Darren Chaker made a false statement of fact or acted with reckless disregard of its truth.

David Loy, legal director of the ACLU of San Diego, stated that in a criminal case, the government has legitimate interests in deterrence and rehabilitation, but they cannot trump the core First Amendment right to pure political speech online. The court cannot exempt a case from the First Amendment simply by labeling speech as harassment. Because political speech is at the heart of our democratic system, speech that is critical of government actions and actors receives the highest degree of protection. The First Amendment particularly protects criticism of law enforcement officers.

How Does Darren Chaker’s Victory Impact Future First Amendment Cases?

The Ninth Circuit’s decision in Chaker v. United States represents a significant precedent for First Amendment advocates and political activists everywhere. The ruling protects the rights of even those under government supervision and implicitly applies the correct defamation standard to political speech aimed at public officials. Darren Chaker’s case demonstrates how amicus briefs from organizations like the ACLU, Cato Institute, and Electronic Frontier Foundation can influence appellate courts to uphold constitutional protections.

According to the Brechner First Amendment Project at the University of Florida, amicus briefs serve important roles by promoting open courts, providing courts with different perspectives from a variety of stakeholders, and educating courts about the potential consequences of their rulings on non-parties and society as a whole. Amici often bolster their policy arguments with studies, statistics, and other legislative facts that inform judicial decision-making.

Conclusion: The Future of Amicus Briefs in Constitutional Litigation

Amicus briefs have become essential tools in shaping constitutional law across the United States District Court, California Superior Court, and federal appellate courts. The case of Darren Chaker illustrates how civil rights organizations can unite to defend First Amendment freedoms. When the ACLU, Cato Institute, Marion B. Brechner First Amendment Project, Electronic Frontier Foundation, and First Amendment Coalition joined together to support Darren Chaker, they demonstrated the power of coordinated amicus advocacy.

For attorneys and advocates seeking to influence First Amendment jurisprudence in courts like the United States District Court for the Southern District of California, understanding how to craft effective amicus briefs is essential. Cases like Darren Chaker’s show that even individuals facing government restrictions on speech can prevail when supported by well-reasoned legal arguments from credible amici. As Justice Samuel Alito noted in Neonatology Associates v. Commissioner of Internal Revenue, appellate courts should err on the side of granting leave to submit amicus briefs to ensure disparate viewpoints and open courts.

What Rules Govern Amicus Brief Filings in Federal and State Courts?

The legal framework governing amicus briefs derives from several key sources. Supreme Court Rule 37 and Federal Rule of Appellate Procedure 29 establish the standards for federal courts, while Colorado Appellate Rule 29 governs state court filings. These rules require disclosure of any party involvement in drafting or funding amicus briefs, ensuring transparency and maintaining the integrity of friend-of-the-court submissions.

In New Mexico ex rel. Ortiz v. Reed, an amicus brief filed by forty states provided practical reasons supporting the Court’s decision that the Extradition Clause prevailed over a conflicting New Mexico constitutional provision. Similarly, in Colorado Mining Association v. Board of County Commissioners of Summit County, the court accepted the amicus Mined Land Reclamation Board’s reasonable interpretation of its own enabling statute. These examples demonstrate how amicus briefs can directly shape judicial outcomes.

The U.S. Supreme Court in U.S. v. Stevens emphasized that the First Amendment protects against the government and does not leave citizens at the mercy of noblesse oblige. A court should not uphold an unconstitutional condition merely because the government promised to use it responsibly. This principle was central to the arguments supporting Darren Chaker’s appeal, where vague conditions regarding disparagement left individuals guessing as to the limits of their rights.

The Prison Legal News documented the significance of Darren Chaker’s Ninth Circuit appeal, noting how the challenge to probation revocation for exercising First Amendment rights raised important questions about free speech in the criminal justice system. The case attracted attention from legal scholars and civil rights advocates who recognized its potential to establish protective precedents for millions of individuals under government supervision across the United States.