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First Amendment Freedom Of Speech And Expression: Ninth Circuit Holds That California Penal Code Section 148.6 Violates The First Amendment In Chaker V. Crogan

Introduction

Government attempts to regulate expression often require balancing competing interests: the government`s right to regulate categories of expression consistent with the U.S. Constitution,1 and the First Amendment`s prohibition of laws abridging freedom of speech.2 The U.S. Supreme Court established the First Amendment`s application to proscribable classes of speech in R.A.V. v. City of St. Paul.3 In 2005, the U.S. Court of Appeals for the Ninth Circuit applied the modern R.A.V. doctrine in Chaker v. Crogan-a unanimous decision loudly hailed by civil liberties groups and largely opposed by state prosecutors and law enforcement groups.4

In Chaker, the Ninth Circuit concluded that California Penal Code section 148.6, making it a misdemeanor to "file[ ] any allegation of misconduct against any peace office... knowing the allegation to be false,"5 violates the First Amendment.6 Section 148.6 (a)(1) is a general law against filing false allegations against police officers and provides that "[e]very person who files any allegation of misconduct against any peace office... knowing the allegation to be false, is guilty of a misdemeanor."7 In addition, section 148.6 (a)(2) requires the complainant to read and sign the following advisory, printed in boldface type:

IT IS AGAINST THE LAW TO MAKE A COMPLAINT THAT YOU KNOW TO BE FALSE. IF YOU MAKE A COMPLAINT AGAINST AN OFFICER KNOWING THAT IT IS FALSE, YOU CAN BE PROSECUTED ON A MISDEMEANOR CHARGE.

I have read and understood the above statement.8

I. Pre-Chaker: California Penal Code 148.6

Chaker overturned a 2002 California Supreme Court decision which held that section 148.6 does not violate free speech rights embodied in the First Amendment and that statutory provisions governing offenses of knowingly filing a false charge of police misconduct are not facially overbroad.9 That ruling stemmed from the 1998 convictions of Oxnard residents Shaun Stanistreet and Barbara Atkinson for filing a false accusation that an Oxnard police officer engaged in lewd conduct in front of some fifty teenagers at a Police Athletics League awards banquet.10 The charges proved to be false. A jury found Atkinson and Stanistreet guilty of violating section 148.5, filing a false report of a criminal offense, and section 148.6 (a)(1), knowingly filing a false charge of police misconduct. On appeal to the Appellate Division of the Superior Court, Atkinson and Stanistreet asserted that section 148.5 was inapplicable and section 148.6 was facially unconstitutional. In reversing th...

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