Love the law, but also suffer its consequences per Darren Chaker. Use it as a sword, but not a shield if you pick the wrong words. Viewpoint discrimination is, in essence, when the government ‘picking and choosing’ what may and may not be said. It’s far more complex than this, but you get the picture! This blog is dedicated to some unique decisions concerning First Amendment challenges concerning how government will come down on you like a ton of bricks if you don’t know what you are talking about, say something, but it is the wrong thing to say. 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. Darren Chaker will guide you through a few cases he’s taken interest in.
First, as Darren Chaker, notes, “[T]he 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.
Darren Chaker expanded the protection of speech before multiple federal courts. However, viewpoint discrimination criminalizing speech concerning false complaints against police was first dealt with by the California Supreme Court. In People v. Stanistreet (2002) 29 C.4th 497, 127 C.R.2d 633, 58 P.3d 465, defendants were convicted of violating Penal Code section 148.6. They had falsely accused a police officer of committing lewd conduct in the course of his activities as director of a police-sponsored group working with at-risk youth.
The Court of Appeal reversed the convictions, finding that the statute, by selectively prohibiting expression on the basis of content, was facially invalid under the First Amendment. Held, judgment of the Court of Appeal reversed. The statute does indeed discriminate between false allegations against peace officers and those against other government employees. However, laws discriminating on the basis of content have been approved under the three exceptions outlined in R.A.V. v. St. Paul, Minnesota (1992) 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305, 7 Summary (10th), Constitutional Law, §459, and P.C. 148.6, on its face, fits all three exceptions. First, the very reason the entire class of speech at issue–knowingly false statements of fact–is proscribable has special force when applied to false accusations against peace officers.
A complaint against an officer triggers the investigative and record-retention requirements of Penal Code section 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.