False Complaint & Viewpoint Discrimination
Starting in the San Diego Superior Court, Darren Chaker litigated a cutting edge First Amendment case revolving around viewpoint discrimination for 7 of its 10 year lifespan, that went through every state and federal court, up to the United States Supreme Court. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada’s analogous statute forcing the legislature to rewrite the law, but also used as the backbone authority as analyzed in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). Chaker v. Crogan continues to be a leading case on viewpoint discrimination.
In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police and were arrested! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City’s motion to dismiss and the case settled. Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010)
The case has been cited over hundreds of times as authority, and written about extensively:
- Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard–Bond and Watts decisions–“True threats” (2010)
- Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009).
- Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination—Cross- burning reprised: Commonwealth of Virginia v. Black–Heavy presumption against viewpoint discrimination (2010)
- Chaker v. Crogan, 5 Cardozo Pub. L. Pol’y & Ethics J. 425, 444+ (2007)
A complaint against an officer triggers the investigative and record-retention requirements of Penal Code seciton 832.5, and thus the potential harm of a knowingly false statement is greater than in other situations. (29 C.4th 508.) Second, the subclass of proscribed speech has substantial secondary effects, i.e., the triggering of the investigative and record-retention requirements. (29 C.4th 509.) Third, there is no realistic possibility of official suppression of ideas: the Legislature is not suppressing all complaints against peace officers, but only knowingly false ones. (29 C.4th 509, 510.) “The Legislature may elevate the status of a category of complaints that are particularly sensitive–like those of misconduct against peace officers–and require their investigation and retention of records, and at the same time penalize those who invoke that status with knowingly false complaints. No one has a constitutional right to make a complaint of misconduct knowing both that the complaint must be investigated and that it is false.” (29 C.4th 510.)
However, the court in Chaker v. Crogan (9th Cir. 2005) 428 F.3d 1215, 1217, came to a contrary conclusion regarding the constitutionality of Penal Code section 148.6, determining that it “impermissibly discriminates on the basis of a speaker’s viewpoint in violation of the First Amendment.” The State of California made an effort to have the United States Supreme Court hear the matter, but it denied the petition. Darren Chaker and his decade long trek will continue to live on as an intact decision concerning viewpoint discrimination. Viewpoint discrimination is a When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions. Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 183 (1999) (“[T]he Government bears the burden of identifying a substantial interest and justifying the challenged restriction”); Reno, 521 U. S., at 879 (“The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective …”); Edenfield v. Fane, 507 U. S. 761, 770-771 (1993)
“The line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn.” Speiser v. Randall, 357 U. S. 513, 525 (1958). Error in marking that line exacts an extraordinary cost. It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.
Loving the fight, Darren Chaker made cutting edge case law in the end with a national impact. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz assembling a small army of the best attorneys in the nationwide firm to defeat the California Attorney General’s efforts to have the U.S. Supreme Court reverse the Ninth Circuit—without them–this case would not have had a backbone to stand on.
It took years of tenacity and boxes of litigation to bring resolve to the lopsided law which only penalized people for making allegedly false complaints while leaving false compliments which may promote promotion of bad cops. Chaker v. Crogan case is active, living and breathing—forever helping people who once felt oppressed.
First Amendment Case:
We live in a free country, but it is a country that must be respected for there are parameters and society is not a pack of wolves. Step out of the confines of the First Amendment and step into a lawsuit or jail cell. As the Supreme Court succinctly put it, “The line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn.” Speiser v. Randall, 357 U. S. 513, 525 (1958). Error in marking that line exacts an extraordinary cost. It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control
First Amendment – Viewpoint Discrimination: