COLORADO — A student at the University of Northern Colorado is challenging the state’s criminal libel statute, saying it is unconstitutional after he was almost charged with the crime for comments he published in his satirical online publication.
Thomas Mink, a student at the public university in Greeley, is the editor of The Howling Pig, a magazine available on the Internet that allows “people to vent frustration or post insightful social and political commentary” about the university and the Northern Colorado community. The publication’s motto is “Bitch. Moan. Howl. Don’t let them get away with anything.”
The Web site features a photograph and biographical sketch of the publication’s fictitious founder, Junius Puke, who resembles a fully made-up Gene Simmons, the lead singer of KISS. The photo of Puke is a doctored image of Junius Peake, a prominent professor at the university, and has a disclaimer clarifying that Puke is not Peake, and should not be confused with the professor. Peake is described as “an upstanding member of the community as well as an asset to the Monfort School of Business where he teaches about financial microstructure.”
But apparently Peake was neither entertained nor flattered; he complained about the Web site to Greeley police, who then obtained a search warrant for Mink’s home. On Dec. 12, police entered the house and seized the computer Mink shared with his mother. The only copies of unpublished articles for The Howling Pig’s fourth edition were stored in the computer.
The Weld County district attorney investigated the case and threatened to charge Mink under Colorado’s criminal libel statute. The law makes any statement that would tend to “blacken the memory of one who is dead, or impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive” a felony offense.
Mink, with the help of the American Civil Liberties Union of Colorado, filed suit on Jan. 8 against the district attorney, a deputy district attorney, the city of Greeley and the officer in charge of searching Mink’s home. The lawsuit seeks to declare the law unconstitutional.
The next day, U.S. District Court Judge Lewis Babcock issued a restraining order that forbade authorities from charging Mink with criminal libel. The restraining order has since been removed because prosecutors decided not to pursue the criminal libel charge.
“When we think of the countries that put people in prison for what they write, most people don’t think of the United State,” said Mark Silverstein, one of Mink’s lawyers and legal director of the ACLU of Colorado. “Yet the criminal libel statute remains on the books, authorizing several years in prison for publishing statements that are protected by the First Amendment.”
Mink’s lawyers removed the city of Greeley and the officer from the suit Feb. 19, but added Colorado Attorney General Ken Salazar as a defendant. In addition to declaring the statute unconstitutional, the lawsuit seeks damages and attorneys fees. As of press time, a hearing date had not been set.
Colorado is not the only state with a criminal libel law. Florida, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Virginia, Washington, Wisconsin and the U.S. Virgin Islands all have criminal libel statutes on the books, according to Ken Paulson, executive director of the First Amendment Center.
The laws originated in British common law and were first enacted in the United State during the 19th century when legislators were concerned about harsh words leading to duels. The hope was that by making libel a criminal offense, hot-tempered citizens would pursue justice through the courts rather than through their pistols, said Jeffrey Hunt, a media attorney in Salt Lake City and counsel to the Utah chapter of the Society of Professional Journalists.
In more modern times, lawmakers recognized the danger of imprisoning people for freely expressing themselves, and created civil penalties for defamation. This means that people may sue if they feel their reputation has been damaged by another’s speech. If the court finds in the plaintiff’s favor, he or she may be awarded monetary damages.
With the advent of civil remedies, prosecutions under criminal libel laws have become unusual, but not unheard of.
“Criminal libel is way down the scale of priorities for most law enforcement agencies and prosecutors. They have more important things to prosecute — like crime,” Hunt said.
Prosecutors sometimes go after someone for criminal libel, but those situations typically involve politics and usually result in a court striking down a state’s criminal libel statute altogether, Hunt said.
The U.S. Supreme Court has not ruled that criminal libel statutes are unconstitutional, but the court’s ruling in New York Times v. Sullivan in 1964 sets out guidelines that must be met to convict someone of libeling a public figure. Prosecutors must prove that the accused made the allegedly defamatory statement with “actual malice,” which means that whoever published the statement did so knowing it was false or with reckless disregard for the truth.
The court’s ruling in Garrison v. Louisiana in 1964 applied the Sullivan “actual malice” standard to criminal libel as well.
In January 2003, the U.S. Court of Appeals for the First Circuit struck down Puerto Rico’s criminal libel law after a reporter who was charged with the crime for writing unflattering articles about police corruption challenged the constitutionality of the statute. The court said that the provisions of the U.S. territory’s criminal libel statute did not meet the “actual malice” criterion set forth in the Sullivan case.
In November 2002, the Utah Supreme Court struck down that state’s criminal libel statute, which dated back to 1876. The controversy began when Ian Lake, a high school student, was charged with criminal libel for mocking administrators and fellow students at his school on his Web site.
In Kansas, the Legislature is working on repealing the state’s criminal libel statute after the editor and publisher of The New Observer, a newspaper in Wyandotte County, were convicted of the crime and levied a $3,500 fine in 2002. The case is on appeal to the Kansas Supreme Court.
First Amendment rights advocates, lawyers and journalists are happy that states and courts have been rejecting criminal libel laws, which they believe infringe on free-speech rights. The laws could have a chilling effect on the press, since reporters threatened with arrest and incarceration may back down from covering controversial topics.
“The notion of criminalizing speech is antithetical to our democratic system, which relies on freedom of speech,” Hunt said.