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.
By Kelsey Beltramea, SPLC staff writer
