Criminal Libel's 'Rockie' Future in Colorado

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Politics makes for strange bedfellows as a  Colorado Republican legislator, backed by the ACLU and the state's press association, has filed a bill to eliminate the offense of criminal libel, a class 6 felony.

The Associated Press reports that Sen. Greg Brophy, who represents the Eastern Plains, wants to repeal the 19th century law that has been applied seven times over the past two years, including against Howling Pig editor Thomas Mink (see "TUOL" posts 12/15/11, 6/6/11 & 7/22/10). Critics argue the law suppresses First Amendment freedom of speech as it subjects individuals who broadcast or publish defamatory comments about another to up to 18 months in the hoosegow and a maximum $100,000 fine for a first offense.

Pursuant to Colorado Revised Statutes Title 18-13-105: "A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel."

The Colorado Press Association and the ACLU support Brophy's repeal effort, while the state's District Attorney's  Council has remained neutral, according to the AP account. Brophy is quoted in the wire service story as saying: “I think it tramples on the First Amendment rights of people to write and/or post online things that they want to post, and so I’m just seeking to strike the statute. Pretty plain and simple.”

UPDATE: Howling Pig Quieted by $425k Payout

Image via WikipediaFormer Univ. of Northern Colorado student Thomas Mink is $425,000 richer this week, the ACLU reports, following settlement of his 2004 claim based on a former Weld County Deputy District Attorney's approval of a search warrant of his home in connection with a criminal libel suit against The Howling Pig, an online publication of which he was the publisher (see "TUOL" posts 6/6/11, 7/22/10).

In Thomas Mink v. Susan Knox, a Deputy District Attorney Working for the 19th Judicial District Attorney's Office in Her Individual Capacity (Case No. 04-cv-00023) the U.S. District Court for the District of Colorado found for Mink in his action under 42 U.S.C. sec. 1983 that his Fourth Amendment rights were violated by an illegal search and seizure of his home computer and written materials arising from a criminal libel probe based on comments about a professor that appeared in The Howling Pig. The Associated Press reported that Knox is no longer with the Weld County DA's office.

UPDATE: Howling Pig Blogger's 4th A. Rights Violated by Colo. Prosecutor, Federal Judge Rules

Image via WikipediaThird time was the charm for teen blogger Thomas Mink, creator of the Howling Pig Website, whom a federal judge last week ruled had his constitutional rights violated by Weld County (Colo.) prosecutor Susan Knox, who approved a search warrant seizing the student's computer in a criminal libel probe.

In Thomas Mink v. Susan Knox, a Deputy District Attorney Working for the 19th Judicial District Attorney's Office in her Individual Capacity (Case No. 04-cv-00023-LTB-CBS), U.S. District Court for the District of Colorado Judge Lewis T. Babcock, in a 13-page opinion, granted Mink summary judgment, holding Knox liable under 42 U.S.C. sec. 1983 for violating Mink's Fourth Amendment protection against illegal search and seizure.

As previously reported by this blog (see "TUOL" post 7/22/10), the whole affair began when a University of Northern Colorado professor complained to police that Mink's Howling Pig Website altered his image and included defamatory content about him.  A criminal libel probe was launched and Knox okayed a search warrant of Mink's mother's home where he resided that culminated in his computer being confiscated.

Judge Babcock concluded Mink's efforts were protected satire under the First Amendment, which derailed Knox's contention that she was shielded from personal liability because she was acting in her capacity as a government official.  "Mr. Mink has established that Ms. Knox's alleged conduct violated his Fourth Amendment rights because there was no probable cause to believe that he had committed criminal libel," Judge Babcock wrote.

Judge Babcock was slow to come over to Team Mink, as on two previous occasions, the U.S. Court of Appeals reversed his dismissal of Mink's claim and remanded the case to him

10th Circuit: Student Journo's Illegal Search Suit Against Deputy DA May Proceed

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In a 30-page decision this week, the U.S. Circuit Court of Appeals for the Tenth Circuit reversed the trial court decision in Thomas Mink v. Susan Knox (Case No. 08-1250), holding that a former Deputy District Attorney's qualified immunity privilege did not protect her from being sued personally regarding an improper search of a student journalist's home.

Grounded on a criminal libel law claim brought against student journalist Thomas Mink's parody of Univ. of Northern Colorado Prof. Junius Peak that appeared in the Howling Pig student newspaper, Greeley, Colo., police obtained a warrant and searched Mink's home. The appellate court ruled the search violated Mink's First Amendment rights, and asserted that authorities should have known it did so.

According to the 10th Circuit decision, Knox did not personally have to participate in the abridging of Mink's civil rights to face exposure to liability, but that an "affirmative link" between the deprivation of Mink's rights and Knox's exercise of control or discretion was sufficient. The ACLU took up the cudgel, representing Mink as a means of challenging the state's criminal libel law.