Court won't consider libel law in 'Howling Pig' case

Rocky Mountain News

Published April 16, 2007 at midnight

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A University of Northern Colorado student investigated for publishing a satirical online journal may be eligible for damages from the assistant district attorney who approved a search warrant for the student's Ault home, a federal appeals court ruled today.

But the three-judge panel of the 10th Circuit Court of Appeals said it will not consider whether Colorado's criminal libel statute is unconstitutional because prosecutors announced shortly after searching his home that they would not file charges against Thomas Mink, author of the journal "The Howling Pig."

Greeley police went to Mink's home in 2003 and confiscated his computer after receiving a complaint from a UNC professor who was mocked in the publication. Mink said the officers warned him he was in "big trouble," and that continuing to publish the journal would only "make things worse for him," according to the ruling. Officers later told Mink's attorney they were pursuing charges under the state's criminal libel statute, which makes it a crime for someone to maliciously publish false, damaging information about someone who is not a public figure.

Mink filed a federal lawsuit in early 2004, saying the law violated his constitutional right to free speech and seeking damages for the search and seizure. The district court dismissed Mink's case, saying his claims against prosecutors were barred by absolute immunity, and that Mink did not have standing to challenge the statute because the case against him was not pursued.

Mink appealed and on Monday, the federal appeals court agreed he could not challenge the libel law. They also ruled, however, that the prosecutor did not have absolute immunity, and sent the case back to the district court for consideration.

The judges making the ruling were Terrence L. O'Brien, Timothy M. Tymkovich and David M. Ebel.

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