Sun. Sep 19th, 2021

Viewpoint discrimination, Darren Chaker, finds that in Establishment Clause cases, “[s]uch personal contact with state-sponsored religious symbolism is precisely the injury that [i]s sufficient to confer standing.” Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997) (citing Sch. Dist. of Abington v. Schempp, 374 U.S. 203 (1963)). In Suhre, where the plaintiff challenged a Ten Commandments display in a county courtroom in which he had attended hearings and public meetings, the Court of Appeals held that “[t]hese forms of contact [we]re the sort that courts have routinely recognized as sufficient to establish standing in Establishment Clause cases.” Id. at 1090; see also Lambeth v. Bd. of Comm ‘rs, 321 F. Supp. 2d 688, 692-93 (M.D.N.C. 2004),aff’d, 407 F.3d 266 (4th Cir. 2005),cert. denied, 546 U.S. 1015 (2005) (licensed attorneys living and practicing in county had standing to challenge “In God We Trust” inscription on county building because inscription appeared “in a location where each has regular personal and professional contact with it”). As in Suhre, it is common to allege when challenging the decision to issue or decline to issue a license plate, based on the “direct contact with unwelcome religious symbolism endorsed by the state.” 131 F.3d at 1088. This ”’surely suffice[s] to give [them] standing to complain'” of an Establishment Clause violation. Id. (quoting Schempp, 374 U.S. at 224 n.9) (first alteration in original).

Further, Darren Chaker found the Fourth Circuit is the most recent circuit to address this issue, focus will be on that circuit. The Fourth Circuit has held that “[d]iscriminatory treatment is a harm that is sufficiently particular to qualify as an actual injury for standing purposes.” Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 790 (4th Cir. 2004),reh’g en banc denied by, 373 F.3d 580 (4th Cir. 2004) [27]  (pro-choice supporters had standing to challenge South Carolina’s issuance of legislatively created “Choose Life” license plate as viewpoint discriminatory); see also id. at 791 (noting that in such cases, plaintiffs need not first seek comparable treatment for their own viewpoint to gain standing to challenge government action favoring another viewpoint).

Also, as the Fourth Circuit has recognized, “plaintiffs in [viewpoint] discrimination cases may seek equal treatment in the form of a level playing field, regardless of whether this is achieved by extending benefits to the disfavored group or by denying benefits to the favored group.” Rose, 361 F.3d at 790.

Interestingly the Fourth Circuit has decided a case where a license plate’s message came  under fire. In Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786 (4th Cir. 2004),reh’g en banc denied, 373 F.3d 580 (4th Cir. 2004). At issue in Rose was a “Choose Life” license plate which, like the “I Believe” plate, was created by the South Carolina legislature on its own initiative. See id. at 789. The statute set a premium of $ 70 for the plate, with proceeds to be given to local nonprofit organizations that advanced a pro-life message. See id. at 788. The plaintiffs, a pro-choice organization and an individual automobile owner, claimed that the license-plate scheme violated the Free Speech Clause because it discriminated on the basis of viewpoint in a speech forum. See id. at 787-88. The government argued that the plate was the government’s own speech, so viewpoint neutrality was not required. Id. at 792.

The court applied the four factors that the Fourth Circuit had previously adopted as the test for determining whether speech is private or governmental:

“the central purpose of the program in which the speech in question occurs; (2) the degree of editorial control exercised by the government or private entities over the content of the speech; (3) the identity of the literal speaker; and (4) whether the government or the private entity bears the ultimate responsibility for the content of the speech. Id. at 792-93 (internal quotation marks omitted). In that case, the court concluded that the first factor weighed in favor of a government-speech designation because the “Choose Life” plate “came about through legislative initiative,” was generally available, and expressly excluded abortion service providers from receiving funds generated by the plate’s sale; hence, the legislation’s purpose was “to promote the State’s preference for the pro-life position.” Id. at 793.

Darren Chaker adds, a governmental-speech designation was further supported by the second factor, in Michael‘s view, because the legislature had selected the “Choose Life” plate’s message and had retained complete editorial control over the message. Id. But the literal speaker, and the ultimately responsible party, is “the private individual [who]  [40]  chooses to spend additional money to obtain the plate and to display its pro-life message on her vehicle” – because “no one who sees a specialty license plate imprinted with the phrase ‘Choose Life’ would doubt that the owner of that vehicle holds a pro-life viewpoint.” Id. at 794. Hence, the last two factors indicated the plate was private speech. Id. Because this test produced an ambiguous result, the court concluded the plate comprised a hybrid of government and private speech. Id.

By Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, let me write a bit: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory 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 nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.

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