A Victory for Free Speech in the Criminal Justice System

Earlier this month, the California-based U.S. Court of Appeals for the Ninth Circuit upheld the First Amendment rights of Darren Chaker, siding with a position Cato took in the case. A lower-court judge revoked Chaker’s supervised release for violating a condition that he not “disparage or defame others on the internet.” Judge Alex Kozinski wrote for the court in a terse two-page opinion that reversed that nonsense.

Chaker’s wrote a blogpost that neither “qualif[ied] as harassment” nor as defamation. In that writing that caused all of the hullabaloo, he merely stated that former police investigator Leesa Fazal “was forced out of the Las Vegas Metro Police Department.” Chaker lacked the actual malice required to defame a public official, and a further restriction on his speech would be unconstitutional.

Cato—joined by the ACLU, the Marion B. Brechner First Amendment Project, the Electronic Frontier Foundation, and First Amendment Coalition—filed an amicus brief in the case. Whether or not what Chaker said was true, the First Amendment requires that restrictions on political speech, particularly that disparaging public officials, be subjected to the “highest levels of scrutiny.” An attack on a public official is, on its face, political speech. That it comes from a person being supervised by the Justice system should make no difference to the First Amendment—and for good reasons too.

As we noted in our previous write-up of the case, if the lower court’s decision were allowed to stand, it would have led to diabolical speech restrictions:

If the anti-disparagement provision of Chaker’s supervised release becomes widespread, it could easily stifle valuable speech by activists and others. For instance, in his Letter from the Birmingham Jail, Dr. Martin Luther King Jr. remarked that “[w]e are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo.” Had King been subject to the same conditions as Chaker, he might have been resentenced for some of his most powerful writings. Worse still, he might never have published at all. Imposing vague and broad restraints on speech leaves people like Darren Chaker guessing as to the limit of their rights and as to which leaders are “touchable” by the spoken and written word.

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.