Student challenges Colorado criminal libel statute

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Mink: ‘I’d like to say even more offensive things’

For Thomas Mink, it was a surreal experience. A friend, eager to embarrass him, had dragged Mink to her constitutional law class because the professor was known to regularly make reference to Mink’s case, which is hovering in the 10th U.S. Circuit Court of Appeals and challenging the constitutionality of Colorado’s criminal libel statute. For that class period Mink sat hunched in the lecture hall, hoping his haircut would do enough to disguise his identity.

“It’s a weird kind of notoriety,” he said about the situation.

This month marks two years since police officers stepped into Mink’s home in Ault, Colo., with a search warrant and confiscated his computer and other publishing materials used to produce his satirical Web site, The Howling Pig.

Since then, a flurry of legal action has pushed his case through Colorado federal courts. The cornerstone of Mink’s lawsuit is an argument against the state’s criminal libel statute, which allows the state to fine or imprison speakers who make defamatory statements about other people. Said Mink of the statute, “It has to go.”

Mink sees this case as a battle for free speech in the state, especially when free speech concerns his right to say what he wants.

“I’d like to say even more offensive things,” he said. “I have actually researched to a very deep degree how far I can go without getting sued.”

Mink’s appeal asserts that the existing statute is too vague. Mink said the language of the statute, which makes a felony offense of any speech that tends to “blacken the memory of one who is dead,” is too broad, and too easily infringed upon by the public.

“If people were aware of it, and were law-abiding citizens, then we would have an incredibly boring society in Colorado,” Mink said. “Nobody could talk about Richard Nixon.”

Even if his appeal ends in the 10th U.S. Circuit Court of Appeals in Denver, Mink is prepared to appeal his case all the way to the Supreme Court, and said that litigation, as opposed to legislative action, is the best way to pursue his cause.

“I’ve worked on legislation before, and it tends to not go quickly or well, even when you have a lot of allies,” he said. “It’s an unconstitutional law — it’s the court’s job to figure it out.”

COLORADO — What started with a search warrant and a confiscated computer has swelled into a mission to strike down a state statute passed in 1963, but couched in 17th century English common law.

Alleging a violation of free speech and the unconstitutionality of Colorado’s criminal libel statute, attorneys for a University of Northern Colorado student presented their case last week during oral arguments before the 10th U.S. Circuit Court of Appeals in Denver.

At the same time, two separate cases working through area courts hold the potential to affect the outcome of the case, legal experts suggest.

Thomas Mink’s case began in January 2004 after police in Greeley, Colo., confiscated his computer and threatened him with arrest after he posted a doctored photo of a prominent university professor on his satirical online newsletter, The Howling Pig.

Mink sued, but a federal district court dismissed his lawsuit in October 2004 on grounds that, as he was never charged under the law, he lacked standing to challenge it.

While admitting his case against Colorado authorities and the state’s criminal libel statue is “not the strongest” — because he was never jailed — Mink said he hopes to push his appeal to the Supreme Court, if necessary.

“Criminal libel is a really crappy law,” he said. “Especially the way it’s applied in Colorado. It needs to go.”

All 50 states have civil libel laws that allow victims of allegedly defamatory statements to seek compensation from speakers. Criminal libel laws are different in that they allow the state to fine or imprison speakers of defamatory statements. Seventeen states, including Colorado, currently have criminal libel laws.

During the half hour of oral arguments on Jan. 9, Mink’s attorney Bruce Jones asked the panel of circuit judges to order both sides of the case to file a five-page supplemental brief for the panel to use in its deliberations. The brief, to be filed by Jan. 20, must address a separate 10th Circuit case decided in early January that discouraged courts from ruling on the constitutionality of existing state statutes. In a jab at reverse argumentation, Jones said he plans to use the decision in Winsness v. Yocom to demonstrate why Mink’s case still has merit as a challenge to the constitutionality of the criminal libel statute in Colorado.

“My goal with the supplementary brief is to show why applying [the Winsness analysis to this case] would reach a different outcome,” Jones said.

Followers of Mink’s appeal also took note of a recent Colorado case where prosecutors in Durango, Colo. invoked the state’s criminal libel law to charge Davis Temple Stephenson with 27 felonies, including six counts of criminal libel. Stephenson is accused of circulating false and defamatory documents about police officers, a landlord and professors from Fort Lewis College, Colorado’s public liberal arts college, located in Durango.

Jones said he was generally familiar with the Stephenson case, and that it might challenge the presumption that criminal libel statutes are harmless, out-of-date or rarely used.

“It’s relevant to our situation in that it shows that the criminal libel statute in Colorado isn’t just some dormant anachronism that never gets applied or brought to bear in this state, like is the situation in some states with criminal libel statutes,” Jones said.

Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, flew to Denver to last week to hear the oral arguments. Last April, the Silha Center joined the Student Press Law Center in filing an amicus — or “friend-of-the-court” — brief in support of Mink’s case arguing that criminal libel laws could never withstand First Amendment scrutiny.

Kirtley said the judges seemed receptive to Jones’ presentation, particularly when the attorney pointed out that while serious prosecution under the criminal libel statute is unlikely, the threat of prosecution persists and is a direct violation of the First Amendment.

Mink, 26, will finish his degree at the University of Northern Colorado after completing one class this spring. After temporarily yielding editorship of The Howling Pig to another student, Mink is back at the helm of the Web site.

“No one else has the guts to do it,” he said. “Or the time.”

—by Allison Retka, SPLC staff writer