Documente Academic
Documente Profesional
Documente Cultură
15095
15098 CHAKER v. CROGAN
COUNSEL
OPINION
In his third state habeas petition, Chaker raised for the first
time a First Amendment challenge to section 148.6. This peti-
tion was also denied, and the order denying the petition cited
California cases concerning procedural default. After the Cali-
fornia Supreme Court rejected Chaker’s First Amendment
challenge, he raised the claim in his February 25, 2002,
amended federal habeas petition.
ANALYSIS
The state and amicus curiae supporting the state raise sev-
eral issues potentially barring our review of Chaker’s habeas
petition. The state argues that we lack jurisdiction because
CHAKER v. CROGAN 15103
Chaker was no longer serving his probation at the time of this
appeal. The state also contends that the present appeal is moot
because Chaker is not suffering any significant collateral con-
sequences from his conviction. Finally, amicus curiae Crimi-
nal Justice Legal Foundation (“CJLF”) argues that because
Chaker failed to raise his First Amendment claim while he
was still in custody, the district court lacked jurisdiction over
Chaker’s First Amendment claim. We resolve these issues
before addressing the merits of Chaker’s First Amendment
claim.
A. Jurisdiction
B. Mootness
[2] The state next argues that this case is moot, contending
that Chaker is no longer suffering any significant collateral
consequences as a result of his misdemeanor criminal convic-
tion. This argument is foreclosed by Chacon v. Wood, 36 F.3d
1459, 1463 (9th Cir. 1994), overruled on other grounds, 8
15104 CHAKER v. CROGAN
U.S.C. § 2254(c). In Chacon, we recognized an irrebutable
presumption that collateral consequences result from any
criminal conviction. See id. We explained that “[o]nce con-
victed, one remains forever subject to the prospect of harsher
punishment for a subsequent offense as a result of federal and
state laws that either already have been or may eventually be
passed.” Id.; accord Wood v. Hall, 130 F.3d 373, 376 (9th Cir.
1997); Larche v. Simons, 53 F.3d 1068, 1070-71 (9th Cir.
1995). Because Chaker faces the prospect of harsher punish-
ment at a later date as a result of his conviction under section
148.6, his claim continues to present a live controversy.4
C. Statute of Limitations
Id. at 391-92.
Finally, the Court held that the statute was not narrowly tai-
lored to meet the state’s compelling interest in ensuring “the
15114 CHAKER v. CROGAN
basic human rights of members of groups that have histori-
cally been subjected to discrimination.” Id. at 395. The Court
concluded that “[a]n ordinance not limited to the favored top-
ics, for example, would have precisely the same beneficial
effect” as the impermissible content-based statute. See id. at
396.
The Court also concluded that the Virginia statute did not
violate the First Amendment “because burning a cross is a
particularly virulent form of intimidation.” Id. at 363. It there-
fore concluded that “just as a State may regulate only that
obscenity which is the most obscene due to its prurient con-
tent, so too may a State choose to prohibit only those forms
of intimidation that are most likely to inspire fear of bodily
harm.” Id.
CHAKER v. CROGAN 15115
[7] Just as in R.A.V., the category of speech at issue in this
case — knowingly false speech regarding a public official —
is “not within the area of constitutionally protected speech.”
R.A.V., 505 U.S. at 383. As the Supreme Court made clear in
its landmark decision in New York Times, a public official
may recover damages for a defamatory falsehood if he or she
can prove “that the statement was made with ‘actual malice’
— that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.” 376 U.S. at 279-80.
That same standard has been applied in the context of state
criminal libel laws where a public official is concerned. See
Garrison, 379 U.S. at 74 (“The constitutional guarantees of
freedom of expression compel application of the [New York
Times] standard to the criminal remedy.”). Indeed, it is well-
established that knowing falsehoods are constitutionally
unprotected because they are “at odds with the premises of
democratic government and with the orderly manner in which
economic, social, or political change is to be effected.” Id. at
75.