COLORADO— A federal lawsuit filed by a University of Northern Colorado student, which sought to render the state’s criminal libel statute unconstitutional, was dismissed by a federal judge in October. The suit came after an initial threat of prosecution for criminal libel when the student published a satirical photo of a university professor on his Web site.
In the ruling, issued Oct. 26, U.S. District Judge Lewis Babcock granted the defendants’ motion to dismiss, saying that former UNC student Thomas Mink had no legal standing to contest the law because he had not been prosecuted under it and had been assured by the prosecution that no charges would be filed. Mink’s attorneys filed an appeal on Nov. 24.
The suit was filed in January 2004 after police in the city of Greeley searched Mink’s residence and confiscated his computer, which held files posted on his Web site, The Howling Pig, an online publication that allowed people to post opinions about the university. A photo of UNC finance Professor Junius Peake was featured on the Web site.
Peake’s photo was altered to resemble Gene Simmons, the lead singer of the rock group KISS and was labeled “Junious Puke,” a fictional character. The photo was accompanied by a fictional biography. Peake found the photo and biography offensive and reported the Web site to Greeley Police, who recommended that the district attorney pursue criminal libel charges.
Mink sought a declaratory judgement that the Colorado criminal libel statue is unconstitutional under the First and Fourteenth Amendments. The defendants in the suit were the state attorney, the district attorney and the deputy district attorney, who Mink claimed violated his right to privacy and approved an unlawful search and seizure by granting the search warrant.
At one point the city of Greeley was named as a defendant, but was later removed when an out-of-court settlement was reached.
Greeley District Attorney Al Dominguez said that Mink’s attorneys acted too quickly in filing the lawsuit because his office had simply begun an investigation to determine if Mink was violating criminal libel laws.
“All we did was an investigation,” he said. “[Mink] was never charged.”
Bruce Jones, one of Mink’s attorneys, said the search and confiscation that took place in Mink’s home was reason enough to believe charges would be brought against Mink.
According to court documents, Mink feared that any future material on his Web site could be deemed libel. He believed that a judgement declaring the criminal libel law unconstitutional would make search, seizures and investigations for libel unconstitutional as well.
“When we think of the countries that put people in prison for what they write, most people don’t think of the United States,” ACLU attorney Mark Silverstein, who represents Mink, said in the spring. “Yet the criminal libel statue remains on the books, authorizing several years in prison for publishing statements that are protected by the First Amendment.”
Silverstein declined to comment on the appeal process.
Only 16 states have criminal libel laws on the book. The law makes it possible to bring criminal charges against those who have printed false statements against another person. In Colorado, criminal libel is punishable by fines up to $100,000 and up to two years in prison.
Jones said the appeal is in the early stages and will likely not be back in the courtroom soon.
“I’m hopeful that the 10th Circuit [Court] will decide that the decision dismissing the challenging of the criminal libel statute was incorrect,” Jones said.
CASE:Mink v. Salazar, No. 04-B-23 (CBS), 2004 U.S. Dist. LEXIS 22002, 2004 WL 2430092 (D. Colo. Oct. 26, 2004)
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