A recent decision concerning probation conditions and the First Amendment was resolved this month. Darren Chaker was arrested while on supervised release for bankruptcy fraud. Supervised release conditions allows federal district courts to impose special conditions pursuant to 18 USC § 3583(d), provided that they “are reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender, and involve no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release.” In practice, in both state and federal court, the purpose of special conditions typically intend to prevent society from future criminal conduct.
In this instance, due to past blogging about police misconduct, a condition was imposed on Mr. Chaker to not defame or harass anyone on the internet. Curiously this special condition was imposed although the briefs in this case do not show Mr. Chaker had convictions for criminal harassment or had been sued for defamation.
Cato Institute posted the violation occurred when Mr. Chaker blogged, “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.”
The Human Rights Defense Center published an article saying in part, “Fazal felt the blog insulted her credibility and reported it to her superior at the Attorney General's Office, then to the FBI and the Las Vegas Metro Police Department. All three agencies declined to arrest Chaker. She then contacted Chaker's federal probation officer, who had him jailed pending a hearing. The probation officer did not verify whether Chaker's blog comments were truthful or not. Although she was in court, the government did not call Fazal as a witness during the hearing.”
Mr. Chaker filed an appeal and was joined by the Electronic Frontier Foundation, ACLU of San Diego & Imperial Counties, First Amendment Coalition, Cato Institute, and University of Florida, Brechner First Amendment Project, who filed a friend of the court brief in support of Mr. Chaker. On July 5, 2016, the Ninth Circuit held Mr. Chaker's blog post did not constitute harassment or defamation.
As Cato Institute noted in a recent post appeal statement about Chaker v. USA, Case Nos. 15-50138 / No. 15-50193,“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.” Indeed, the First Amendment applies to all equally unless it falls into specific exceptions, like fighting words, or death threats.
In California state courts, a condition of probation that requires or forbids non-criminal conduct “is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent, supra, 15 Cal.3d at p. 486.) Again, the focus being to prevent “future criminality” not a civil wrong, known as a tort, which people get sued for.
Probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.'” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) However, a court may not issue broad restraints on liberty that are completely unrelated to the defendant's crime, conduct and future criminality, without a showing justifying the need for the restriction. (Bitter v. United States (1967) 389 U.S. 15, 16 [19 L.Ed.2d 15, 88 S.Ct. 6]; People v. Ponce, supra, 173 Cal.App.4th at p. 384.)
Probation or supervised release is intended to protect society from future crimes. The danger of allowing such conditions to be imposed, is that a violation is not always clear cut. Examples of typical violations include where a defendant was charged with another crime, was found hanging out with gang members, leaving a court ordered drug treatment program, or was determined to have used drugs. These are clear instances of violations. But when what is true or false becomes a “he said, she said” and based on speech, the conditions become blurry, and, as in this case an innocent man went to jail.
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