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Criminal libel law in hands of court

Appeals judges to rule on constitutionality of Colorado's law

Karen Abbott, Rocky Mountain News

Published January 10, 2006 at midnight

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A lawyer for a student who mocked a University of Northern Colorado professor in an online satirical journal urged federal appeals judges Monday to declare Colorado's criminal libel law unconstitutional.

They argue that the law - one of only 17 in the nation - unfairly inhibits free expression by holding the threat of criminal prosecution over people's heads.

Lawyers for the government countered that the law doesn't need to be declared unconstitutional because several rulings by the Colorado Supreme Court already have limited how it can be applied.

They contend the law is necessary in cases where someone harms another person, who isn't a public figure or involved in a matter of public concern, by maliciously publishing false, damaging information about them.

At issue is the case of Thomas Mink, of Ault, and his journal, The Howling Pig.

Greeley police officers went to Mink's home in December 2003 and seized his computer and written materials, then told him he probably was going to be charged with criminal libel. An assistant district attorney had helped the police obtain a warrant to search Mink's home after Junius "Jay" Peake, a Monfort Distinguished Professor at the University of Northern Colorado and a specialist in financial markets, complained about how he was portrayed online.

The journal said its editor, founder and spiritual leader was Junius "Puke," whom it described as a former roadie for the band KISS who was taking time off "from his well-earned, corporate endowed sinecure at a small western university in order to assist in the publication of The Howling Pig."

The journal then attributed to "Puke" various opinions contrary to Peake's often outspoken views, including one statement that UNC Board of Trustees Chairman Dick Monfort was "stupid and irresponsible," that the governor put him on the university's board because he was a wealthy campaign contributor and that Monfort should resign.

The American Civil Liberties Union of Colorado filed a federal lawsuit on Mink's behalf. Colorado U.S. District Judge Lewis Babcock, noting that satire is protected by the First Amendment, ordered Weld County and Greeley officials not to prosecute Mink.

The judge later dismissed Mink's lawsuit, saying he had no standing to sue because he was no longer in danger of being prosecuted.

Mink appealed to the Denver-based 10th Circuit Court of Appeals, asking for a ruling that Colorado's criminal libel law is unconstitutional.

According to the law, "A person who shall knowingly publish or disseminate . . . any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel."

The crime is a felony.

Mink's attorney, Bruce Jones, argued that the law has an unfair chilling effect.

Although prosecutors have agreed not to prosecute Mink for anything in the first three issues of The Howling Pig, Mink worries subsequent issues could leave him vulnerable to prosecution.

But attorneys for the government said that is impossible because the court has previously found that criminal libel law does not apply to public figures, such as Peake, and matters of public concern to the university community.

"Even if Mr. Mink and The Howling Pig newsletter engaged in all of the activity that they threatened to in the complaint (in terms of writing more satire), and they did that every day from now until eternity, they're not going to violate this statute," said Assistant Attorney General William Allen.

Judges David Ebel and Tim Tymkovich of Colorado and Terrence O'Brien of Wyoming took the case under advisement. A ruling is expected within months.

But at least one judge questioned the ability of average people to make sense of current effect of the law.

"So to construe the criminal libel statute, you've got to go back and read (several Colorado legal rulings)?" Tymkovich asked. "Doesn't that create quite a bit of uncertainty for someone in Mink's position . . . You have to go back and graft three Supreme Court cases onto that?"

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