Criminal libel an outdated law

Don't wait for the court

Published January 15, 2006 at midnight

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Whatever the Denver-based 10th U.S. Circuit Court of Appeals decides in a criminal libel case involving an online journal called The Howling Pig, the legislature should wipe this outrageous and outdated statute off the books.

Ordinary libel is a civil wrong. People who think they've been damaged by false speech can sue. But criminal libel is a felony in Colorado - much more serious business. And it occurs when someone says something that will "blacken the memory" of a person who is dead, or impeach "the honesty, integrity, virtue, or reputation or expose the natural defects of someone who is alive, and thereby to expose him to public hatred, contempt or ridicule."

Since "natural defects" are a universal human condition, all uninhibited commentary is potentially at risk. Talk radio hosts, bloggers and other commentators could be prosecuted in Colorado (or in 16 other states) simply for making fun of the mayor, the governor or the president. It almost never happens, of course, but it shouldn't even be possible.

In December 2003, one Coloradan was threatened with prosecution. He was Thomas Mink of Ault, proprietor of said Howling Pig. He had satirized a professor at the University of Northern Colorado, Junius Peake, under the name "Junius Puke." Peake complained to authorities, and with the help of a complaisant district attorney who apparently wasn't familiar with the concept of "satire," Greeley police obtained a warrant and seized Mink's computer and his papers from his home.

The American Civil Liberties Union filed suit on Mink's behalf, and U.S. District Judge Lewis Babcock, noting that satire is protected by the First Amendment, ordered officials not to prosecute Mink. That was right, of course. The trouble is, Mink's lawsuit was also dismissed, meaning other people could find themselves in the same situation in the future. And the fact that other judges would almost certainly dismiss the criminal libel charges, as Babcock did, is small consolation.

Mink appealed the dismissal, asking for a ruling that the criminal libel law is unconstitutional. In a hearing last week, lawyers for the state argued the law was necessary because a private person, not a public figure such as a prominent and outspoken university professor, might be injured by libel. Yes, someone might; that's why we have civil libel law.

Supreme Court decisions involving libel and satire over the past 40 years have steadily narrowed the potential scope of criminal libel to the point of invisibility, and yet still the law remains on the books. It's an invitation to prosecutorial abuse.

By all means, rule that it is unconstitutional. But the legislature should do its part by wiping the law off the books.

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