Introduction to Proscribable Speech by Darren Chaker

This brief analysis delves into the legal concept of "Proscribable Speech" by examining two pivotal cases, R.A.V. v. City of St. Paul 505 U.S. 377 (1992) and Chaker v. Crogan (9th Cir. 2005) 428 F.3d 1215, cert. den. 547 U.S. 1128 [26 S.Ct. 2023, 164 L.Ed.2d 780]. Both cases revolved around instances of proscribable speech, shedding light on the regulation of speech based on the speaker's viewpoint.

1. R.A.V. v. City of St. Paul and Proscribable Speech

In R.A.V., the focus was on the use of "fighting words" in speech. The ordinance under scrutiny prohibited the display of certain symbols, such as a burning cross, known to incite anger, alarm, or resentment based on factors like race, color, creed, religion, or gender. The Supreme Court's ruling in this case highlighted that the enforcement of the ordinance hinged on the viewpoint of the speaker, allowing some to use fighting words while restraining others. (R.A.V., at 391-92)

The Supreme Court's decision in R.A.V. had far-reaching implications for the boundaries of proscribable speech. In a unanimous decision authored by Justice Antonin Scalia, the Court held that the St. Paul ordinance was unconstitutional as it violated the First Amendment. The key aspects of the Court's ruling can be summarized as follows:

Content-Based Discrimination: The Court underscored that the ordinance was content-based, as it singled out certain types of expression based on their content and viewpoint. It specifically targeted expressions that conveyed bias, prejudice, or hatred on the specified grounds, effectively making it a "hate speech" law.

• Viewpoint Discrimination: Crucially, the Court found that the ordinance constituted impermissible viewpoint discrimination. It allowed for the prosecution of individuals who expressed discriminatory and hateful views against certain groups while permitting those with opposing views to express themselves freely. This was deemed a violation of the fundamental principle that the government should remain neutral in regulating speech, refraining from favoring one viewpoint over another.
• Overbreadth: The Court also noted that the ordinance was overly broad in its scope. While the government had a legitimate interest in protecting citizens from hate speech, the ordinance went too far by prohibiting even speech that might not incite imminent violence or harm.
• Chilling Effect: In its decision, the Court emphasized the potential chilling effect such a law could have on free speech. The fear of prosecution for expressing unpopular or offensive ideas could deter individuals from engaging in protected speech, effectively stifling robust public discourse.

2. Chaker v. Crogan: Defamation and Viewpoint Discrimination Resulting in Proscribable Speech

Darren Chaker's legal journey encompassed various courts, including the District Court for the Southern District of California, the California Supreme Court, and the Ninth Circuit. Chaker's case involved a false complaint as the proscribed speech. Similarly to R.A.V., the enforcement of the law in Chaker was contingent on the speaker's viewpoint. Penal Code section 148.6, the statute in question, exclusively targeted knowing falsehoods associated with complaints against peace officer misconduct.

The Ninth Circuit's ruling demonstrated that while peace officers and witnesses could employ knowing falsehoods during misconduct investigations, the same latitude was not granted to their opponents, the complainants. Thus, enforcement inevitably depended on the speaker's viewpoint. (Chaker, at 1227-28) 

3. Proscribable Speech and the Application of R.A.V. in Chaker 

Darren Chaker's case essentially applied the precedent set by R.A.V. to a distinct factual context. Furthermore, the statute in Chaker mirrored the type explicitly deemed impermissible in the R.A.V. decision. Justice Scalia's words in R.A.V. resonated, emphasizing that the government may proscribe libel but should refrain from discriminatory actions, such as proscribing only libel critical of the government. Section 148.6, however, specifically proscribed libel (knowingly false, written complaints) critical of the government (peace officers), aligning with Justice Scalia's admonition. (R.A.V., at 384)

However, the statute did not criminalize false compliment of government. For example, Darren Chaker explains, if your neighbor is a police officer, drank, beat his wife, and threatened his neighbors, but were asked by a police department in another state if you would recommend your neighbor poses a unique issue. If you are honest, you are stuck with an abusive cop next door. If you lie and give a false recommendation the officer is great and would well, this would not be a violation of the statute. Although the false compliment is motivated to have the neighbor move, it would not be a criminal, against the law as only a false complaint would be. 

4. Proscribable Speech Results in Chilling of Speech: Gertz v. Robert Welch, Inc. and United States v. Alvarez 

In the broader context of proscribable speech, Gertz v. Robert Welch, Inc., articulated the potential chilling effect of criminal prosecution for making false statements. Such legal threats can deter individuals from expressing truthful statements, thus obstructing a vital facet of free speech protected by the First Amendment. (Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 1974)

In another proscribable speech case the Supreme Court resolved in 2012, the court found in United States v. Alvarez, had emphasized the concerns surrounding the misuse of prohibitions on false statements. Even speakers lacking the requisite intent for liability might still fear prosecution for careless false statements. This fear could unjustly hinder speech, including harmless "bar stool braggadocio." (United States v. Alvarez, 567 U.S. 709, 2012)

In conclusion, the cases of R.A.V. v. City of St. Paul and Chaker v. Crogan illustrate the complexities of proscribable speech and the critical role of viewpoint discrimination in such legal determinations. Additionally, Gertz v. Robert Welch, Inc. and United States v. Alvarez underscore the potential chilling effect on speech when false statement prohibitions are misapplied or overzealously enforced.

6. R.A.V.'s Legacy in Proscribable Speech Cases

The Supreme Court's ruling in R.A.V. v. City of St. Paul established important precedents regarding the regulation of proscribable speech. It clarified that while certain categories of speech can be restricted, such restrictions must be content-neutral and viewpoint-neutral to pass constitutional muster. Moreover, the case highlighted the importance of preserving the marketplace of ideas and safeguarding the First Amendment's core principles, even in the face of offensive or hateful expression.

In the years since the R.A.V. decision, the legal landscape surrounding proscribable speech has continued to evolve, with subsequent cases refining the boundaries and limitations of government regulation. Nevertheless, R.A.V. remains a cornerstone in the protection of free speech rights, reminding us of the enduring importance of safeguarding the First Amendment's principles, even in the most challenging and controversial cases.