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Thursday, September 10, 2015

Blogging about Cops Is Not a Crime – Even If You’re on Probation

States can't use probation to censor speech

Darren Chaker was under supervised release when he wrote on his personal blog that Ms. Leesa Fazal, an investigator with the Nevada Attorney General’s Office, was “forced out” of her previous post with the Las Vegas Police Department.

That statement, according to the district court ultimately overseeing Chaker’s probation, was a violation of the requirement that he “not … disparage or defame others on the internet” — and so Chaker was returned to prison.

In so ruling, the court placed an unconstitutional prior restraint on Darren Chaker. But this country long ago moved past the notion of lèse majesté laws protecting public officials from harsh treatment by the press and the people.

Indeed, the American people were so reviled by the enforcement of these statutes during the presidency of John Adams — particularly the Alien and Sedition Acts — that the people ousted the Federalist Party that proposed them. Since that time, Americans have given true meaning to their First Amendment rights against prior restraints on speech or on the terms by which public officials may be discussed.

Even prisoners and probationers receive constitutional protection; terms of supervised release must be narrowly drawn to avoid infringing substantive rights, like those of political expression. 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 a Birmingham Jail, Dr. Martin Luther King Jr. remarked that “we 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. The First Amendment needs appropriate “breathing space” to thrive, as the Supreme Court recognized in NAACP v. Button (1963).

Much earlier, Sir William Blackstone noted,

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.
Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.

Public officials are appropriate objects of criticism, and the protection of their feelings is not the appropriate province of the courts.

Chaker’s words don’t even rise to the standard that must be met to constitute defamation of a public figure. Chaker didn’t act with “actual malice” or reckless disregard for the truth when he published his blogpost, which is the mental requirement necessary to sustain such a charge. His speech was thus constitutionally protected political discourse.

This post first appeared at Cato @ Liberty. Cato has filed a brief supporting Chaker’s appeal.

  • Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.
  • Randal John Meyer is a Young Voices Advocate and a legal research fellow living in New York City.