Court rules former Howling Pig webmaster can sue prosecutor who authorized search warrant

COLORADO -- The 10th U.S. Circuit Court of Appeals ruled Tuesday that former University of Northern Colorado student Thomas Mink can sue a deputy district attorney for damages resulting from her approval of a warrant to search Mink's home and seize his computer for posting a website mocking a professor in 2003.

While Mink was a student at UNC, he was webmaster of an online journal called The Howling Pig. Junius Peake, a finance professor at the university, claimed the website defamed him when it published a photo of Peake altered to look like KISS guitarist Gene Simmons, and described the photo as a picture of "Mr. Junius Puke" and told readers not to confuse Peake with "Puke."

Deputy District Attorney Susan Knox issued the warrant for Mink's computer after receiving a complaint from Peake about the website. Mink was arrested and his computer confiscated on the grounds that he violated the criminal libel statute.

Mink filed a lawsuit in 2004 claiming that the state's criminal libel law violated the First Amendment. Knox's office never pressed the criminal libel charges.

Bruce Jones, an attorney at Holland & Hart, worked with the American Civil Liberties Union to represent Mink and said he and the ACLU are happy with the latest ruling. Jones said that unless the defense decides to try to obtain further appellate review, they will go back to the district court and resume pursuit of the claim against Knox.

"The issues in the case have evolved somewhat over time, but those that were just decided are very important issues particularly because they go to the manner in which the Colorado's criminal libel statute can be applied to chill what should be protected speech," Jones said. "That's a very important issue and one that was worth pursuing and continuing to pursue."

In July 2008, federal district court Judge Lewis T. Babcock ruled that Knox was entitled to qualified immunity, which can protect public officials from being sued for actions performed as a part of their official duties. The 10th Circuit reversed that ruling, finding that Knox was not entitled to qualified immunity because a reasonable person would understand that parody was not libelous. Jones said that he felt it was important to stick with this case for nearly seven years.

"My reaction at the time that I first heard of this was this is so clearly unconstitutional and wrong I can't imagine that it would take place and it's only taken seven years for that reaction to have been vindicated," Jones said.

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