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10th Circuit asked to throw out Colo. criminal-libel law

By The Associated Press
01.14.06

DENVER — An 1800s-era state law that allows people to be jailed for the content of their speech or writing should be thrown out, an attorney for the editor of an online newsletter argued before a federal appellate court this week.

Thomas Mink, a former student at the University of Northern Colorado whose computer was seized by police after he made fun of a professor, wants the 10th U.S. Circuit Court of Appeals to declare the criminal-libel law unconstitutional.

The law allows criminal prosecution for speech “tending to blacken the memory of one who is dead” or to “expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule.”

Police searched Mink’s house and seized his computer in December 2003 after a UNC professor who was named in Mink’s publication, The Howling Pig, complained to authorities that his public reputation was damaged. After the search, Mink sued, saying he faced imminent prosecution under a law that unconstitutionally limited the content of his newsletter.

Will Allen, an assistant attorney general, told a three-judge panel of the 10th Circuit on Jan. 9 that over the years several court cases have limited how the law can be used. He said Mink was never really in danger of prosecution.

“Mr. Mink presents this as a David versus Goliath problem. I present it as a David versus commonsense problem,” he said.

State law makes criminal libel a felony carrying a penalty of up to 18 months in prison and a fine of up to $100,000. But Allen said it cannot be used to punish speech about public officials or about public affairs. Since Mink was using his newsletter to talk about the university and its policies, “he could do it all day long.”

Mink’s attorney Bruce Jones argued that the law was so broad that there was no way to apply it constitutionally.

“If the Legislature wants a constitutional criminal-libel statute, it needs to start over,” he said.

The case caught the attention of numerous media organizations, including the Associated Press, the Colorado Press Association and the Student Press Law Center, which filed “friend of the court” briefs arguing against the law.

U.S. District Judge Lewis Babcock in January 2004 ordered police to return Mink’s computer and barred prosecution of Mink for criminal libel, but he declined to rule on Mink’s arguments that the law was unconstitutional. Babcock later dismissed Mink’s case.

Mink appealed, but Allen and the Weld County district attorney’s office argued that since he does not face the threat of prosecution, he doesn’t have legal standing to challenge the law’s constitutionality.

Former Weld County District Attorney A.M. Dominguez had said in the trial court that “it will be a cold day in hell when I charge under that statute,” Allen said. And current District Attorney Ken Buck has no plans to charge Mink with criminal libel, attorney David Brougham told the judges.

Jones said those assurances were not enough and that Mink still believed he could be prosecuted. After his computer was returned, Mink resumed publishing his newsletter.

Mink’s site features a photograph of UNC finance professor Junius Peake, altered to look like KISS guitarist Gene Simmons. Previously, the caption described a “Mr. Junius Puke” as a former KISS roadie who made a fortune by riding “the tech bubble of the nineties like a $20 whore.”

A disclaimer warns readers not to confuse Puke, the supposed former editor-in-chief of the newsletter, with Peake, described as an “upstanding member of the community as well as an asset to the Monfort School of Business.”

The appellate court panel did not say when it would rule.

The case is Mink v. Buck, No. 04-1496.


Update
10th Circuit upholds dismissal of challenge to criminal-libel law
But three-judge panel reinstates online newsletter editor's claims against prosecutor, orders lower court to decide if Colorado official is entitled to qualified immunity. 04.17.07

Previous
'Howling Pig' back online after court ruling
Federal judge grants restraining order; Colorado police return editor Thomas Mink's computer. 01.12.04

Related

N.M. man sentenced for violating criminal-libel law

Attorney immediately files appeal, says conviction under seldom-used statute violates Juan Mata's free speech. 10.19.05

Jailed for speech: Criminal libel is an old — and bad — idea
By Ken Paulson Poking fun at Colorado prof by doctoring his photo to look like KISS member is pure satire — it doesn't warrant confiscation of The Howling Pig newsletter publisher's computer. 01.18.04

The crime of speaking ill of your betters
By Paul K. McMasters Criminal-libel laws force defendants to face not individuals allegedly defamed, but the government as prosecutor and the taxpayer as underwriter. 11.06.05

Criminal libel


Criminal Libel

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