SPLC

A task force of the Colorado Commission on Criminal and Juvenile Justice made a recommendation to the full commission as part of an ongoing effort to rid the state of “boutique crimes” — those that unnecessarily complicate the criminal code.

The overall motion to reform the state’s theft laws — of which the newspaper theft law was a part — passed by a vote of 17-1, with four members casting neutral votes.

While the commission’s vote is only a recommendation and must be approved by the Colorado legislature, Friday’s decision prompted a negative response from the First Amendment community.

“They’re essentially trying to give anybody the ability to remove newspapers from a box and deprive the public of information, and that’s a form of censorship,” Colorado Press Association Executive Director Samantha Johnston said.

The newspaper theft law was passed in 2004 after a state prosecutor said that no crime had been committed when nearly every copy of a local free-distribution newspaper was taken from the racks. The prosecutor argued the papers had no value and were a form of abandoned property.

Under the law, the theft of free newspapers is classified as a misdemeanor. Violators who steal more than five but less than 100 newspapers can be fined up to $1,000. Theft of between 100 to 500 newspapers can result in a fine of up to $2,500, while those who steal more than 500 may have to pay as much as $5,000.

California and Maryland have similar statutes that criminalize the theft of free newspapers.

Colorado’s law also includes a provision authorizing free-distribution newspaper publishers, advertisers or readers to file a civil suit against someone who commits newspaper theft.

“If someone can just walk in and take the paper off the stands, to me it’s theft,” said former state Rep. Carl Miller, D-Leadville, who sponsored the bill.

Miller added that doing away with the law would also be unfair to advertisers who pay for space in free publications.

However, Doug Wilson, the state public defender and a commission member, believes the law serves little purpose.

Stealing a free publication is “entirely different than somebody breaking into a machine and stealing The Denver Post or going into a convenience store and stealing something that has value attached to it,” Wilson said.

Colorado, Wilson explained, is a state that bases its criminal theft statutes on a “value-added” philosophy. When charging and prosecuting criminals for theft, its primary concern is what the value attached to the stolen item was.

“This isn’t a First Amendment issue,” he said. “We didn’t do it because we’re trying to censor people. We did it because some in the newspaper industry have decided not to put a value on their product.”

Wilson and other commission members cited the fact that there have been only five cases since 2004 in which someone was charged under the statute.

“Because of this, we believe that this was a law that was not being utilized, was overcomplicating the criminal justice system and didn’t need to be on the books anymore,” he said.

However, Student Press Law Center Executive Director Frank LoMonte was not persuaded by the law’s lack of use.

“I don’t see the harm in having a statute that may be serving a meaningful deterring purpose,” LoMonte said, pointing out that the state has used discretion in applying the law in a criminal justice setting.

LoMonte is particularly concerned with the potential impact the commission’s recommendation could have on Colorado student media. Student publications, he said, are disproportionately singled out for theft by fellow students, faculty or administrators who want to censor their messages.

“It’s well documented that groups on campus will use theft as a tactic of censorship,” LoMonte said.

If nothing else, he added, it is important to have a statute on the books to clear up any uncertainty in the minds of campus police that it is a crime to steal a student newspaper.

Moving forward, Johnston — who expressed disappointment over the commission’s lack of involvement of the newspaper industry throughout the process — expects a statewide response in reaction to Friday’s recommendation.

“We fully support cleaning up the statute and making sure nothing’s jamming up the system,” she said. “If newspaper theft were to merely fall under a different title, that might be a conversation we’d be willing to have.”

At the end of the day, LoMonte sees the commission’s action as sending the wrong message.

“Law or no law, it should be clear that it’s illegal to steal anything, whether there’s a price tag on it or not,” he said. “Repealing the law risks giving those on the ground the idea that the state is legalizing theft, and that’s a dangerous statement.”

By Seth Zweifler, SPLC staff writer