Former Colo. student appeals dismissal of suit against prosecutor

COLORADO -- A former University of Northern Colorado student will appeal a federal judge's decision to dismiss his lawsuit against a prosecutor to the 10th U.S. Circuit Court of Appeals. Thomas Mink filed a notice of appeal July 11 and will continue pursuing his claim that a deputy district attorney wrongfully approved a warrant to search his home and seize his computer while investigating a criminal libel accusation against Mink in 2003.

A professor at the university, Junius Peake, had alleged that doctored photos and parody columns that Mink published in his online journal, The Howling Pig, defamed Peake. The Web newsletter contained a photograph of the finance professor altered to look like KISS guitarist Gene Simmons. A caption below the photo described "Mr. Junius Puke" as the newsletter's founder, spiritual leader and inspiration -- and a disclaimer warned readers against confusing Peake, "an upstanding member of the community," with the depicted publication's editor "Puke."

Susan Knox, deputy district attorney, approved a search warrant for Greeley police to investigate Mink after Peake complained, but her office never pressed any charges.

Mink filed his lawsuit in 2004, arguing the state's criminal libel law and the investigation violated the First Amendment. He also said Knox owed him damages for her role in reviewing the search warrant application.

The federal district court refused to address the criminal libel statute's constitutionality, ruling that Mink could not contest the law because he was never charged under it. And an appeal was unsuccessful on that claim, though the Student Press Law Center and the Silha Center for the Study of Media Ethics and Law asked the appeals court to allow the challenge to go forward. The organizations filed a joint brief arguing that the criminal libel statute should be struck down because no such law could satisfy the strict scrutiny that content-based speech restrictions on speech must undergo to survive a constitutional challenge.

However, the appeals court did allow Mink to continue his case against Knox.

In district court in June, Judge Lewis T. Babcock ruled that Knox was entitled to qualified immunity, which generally protects most public officials from being sued for actions performed as a part of their official duties, if they act reasonably according to the legal standards of their state.

A reasonable official in Knox's position could believe that the statements in The Howling Pig were not protected statements under the First Amendment and could violate the state's criminal libel law, justifying the warrant, Babcock concluded.

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