Proscribable Speech

Both R.A.V. v. City of St. Paul.and Chaker v. Crogan, dealt with proscribable speech.  Darren Chaker focused on viewpoint discrimination before the District Court for the Southern District of California, California Supreme Court and then before the Ninth Circuit. In R.A.V., it was fighting words; in Chaker, it was defamation.  In both cases, the proscribed speech was regulated on the basis of the speaker’s viewpoint.  In R.A.V., the ordinance prohibited the display of a symbol (i.e., a burning cross) which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.  The Supreme Court held that under the ordinance, some fighting wordscould be used by certain speakers, but not by their opponents, and thus enforcement was based on the speaker’s viewpoint.  R.A.V., at 391-92. Likewise, in Chaker, section 148.6 prohibited only knowing falsehoods associated with complaints of peace officer misconduct.  The Ninth Circuit held that, under section 148.6, knowing falsehoods could be made by peace officers and witnesses in the course of a misconduct investigation, but not by their opponents, the complainant.  Enforcement was therefore necessarily based on the speaker’s viewpoint. Chaker, at 1227-28. 
At bottom, the Ninth Circuit’s decision in Chaker merely applied this Court’s R.A.V. holding to a new set of facts.  Furthermore, the statute in Chaker is exactly the type that was explicitly described as impermissible in the R.A.V. decision.  Speaking for the Court, Justice Scalia noted, “the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.”  R.A.V., at 384 (emphasis in original).  That is exactly what section 148.6 does; it proscribes only libel (knowingly false, written complaints) critical of the government (peace officers).

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