Illegal speech

Thomas Mink is still kicking.And with renewed vigor, Mink, a student at the University of Northern Colorado, is still railing against the criminal libel laws that were used two years ago to target his satirical online newsletter, The Howling Pig.

Back in January 2004, city police searched Mink’s home, confiscated his computer and arrested him after he posted a doctored photo of a university professor to the Web site. Detectives threatened to charge Mink under the state’s criminal libel laws.With the help of the American Civil Liberties Union of Colorado, Mink responded with a federal lawsuit, claiming Greeley, Colo., police violated his right to privacy, free speech and the Fourth Amendment, which prohibits unreasonable searches and seizures.“They have to go,” Mink said of Colorado’s criminal libel statues.

His lawsuit against Colorado authorities still pending in a federal appeals court, Mink and his attorneys say the state’s criminal libel laws are unconstitutional and outdated.Meanwhile, a legislator in a neighboring state made fruitless efforts this year to purge Utah’s state law of criminal libel provisions; he remains determined to wipe them out.Experts say these recent moves to drop criminal libel are in keeping with court decisions that have frequently found criminal libel laws unconstitutional.

And student press advocates say they are heartened by the efforts, as criminal libel is used increasingly against unpopular speech and against student speakers.Colorado libel case continuesAll 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 defamation laws, according to a December 2005 update on criminal defamation statutes by the Media Law Resource Center.After presenting oral arguments last fall, Mink and his attorneys are awaiting a decision from the 10th U.S. Circuit Court of Appeals in Denver.

In April 2005, the Student Press Law Center filed 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.

Mink whole-heartedly agrees, and said his case is directly targeting the state’s existing statues on criminal libel. He is determined to strike down the laws, he said, if only to pave the way for his own controversial speech.

“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 said if he loses in the Court of Appeals and his case hits a brick wall this spring, he would prefer to pursue an appeal all the way to the Supreme Court. Legislation is too slow and ineffective, he said, and a win in the nation’s highest court would pave the way to strike down criminal libel statues across the country.

“It’s an unconstitutional law,” he said. “It’s the court’s job to figure it out.”

Legislative efforts in Utah

In Utah, the state’s highest court had already found one of its criminal defamation statues to be unconstitutional, but that law, along with several similar laws, remains on the books four years after that decision.A recent legislative effort that aimed to strike down the laws for good is directly related to a 2000 case involving student speech.Ian Lake, a then 16-year-old student at Milford High School, was arrested and charged with one count of criminal libel and one count of criminal slander after posting derogatory comments on his Web site.

Lake referred to several students’ sexual history and also accused his high school principal of being the “town drunk” and having an affair with the school secretary.Lake spent seven days in a juvenile detention facility.

The state later dropped the slander charge but continued to pursue a libel conviction. Police dropped all charges against Lake in January 2003, a few months after the Utah Supreme Court ruled on Lake’s case and declared the state’s criminal libel statue was overly broad and unconstitutional.The person leading the legislative charge to wipe criminal defamation from Utah’s state laws, Sen. Scott McCoy, D-Salt Lake City, served as a clerk for the Utah Supreme Court during Lake’s case.

When McCoy became a state senator, a colleague at his law firm urged him to use the experience to tackle Utah’s criminal libel statues. McCoy’s bill, which would have repealed the state’s criminal libel, slander and defamation statues, successfully passed in the Senate. But the measure was stalled in the House Rules Committee and never made it to the House floor before the end of the general session in March 2006. He said opponents of his bill “felt like it’s always good to have a possible hammer that could potentially be used to go after someone.”

This “just in case” mentality was compounded by resistance from other representatives and senators who believed they had been defamed in the past and were hesitant to change the law, McCoy said.

“I was a little surprised that they were as reluctant as they were,” he said after the bill failed to pass in the legislative session. “Some are really paranoid about the notion of libel and slander such that they want to hang on to criminal defamation law. It’s a total no-brainer to me.”

For Ed Carter, an attorney and journalism professor at Brigham Young University, the situation was equally obvious.

“After the Ian Lake case, it was clear that criminal libel statues needed to be repealed as a formality,” Carter said. “Not only is criminal libel a relic of a former time, it’s selectively applied against politically unpopular speech.”

Carter testified on behalf of McCoy’s bill in a Senate committee, and said he stressed to the senators that criminal libel is not an effective means to handle libel and defamation claims. It is frequently and inappropriately used against teenagers and students, Carter told the committee.

“With criminal libel still intact, there is still the possibility of students being subjected to illegal restrictions on speech,” Carter said.

Students at risk

The possibility of censorship and punishment looms larger, now more than ever, said Greg Lisby, a journalism professor at Georgia State University. Lisby, who wrote a 2004 paper on the need to abolish criminal libel, said he is concerned that criminal libel laws are increasingly used against minors.

“When you look back, [the laws] are used as a baseball club against people who don’t really have an idea of what they’re getting themselves into,” he said.

For Lisby, the biggest problem with criminal libel statues is the direct involvement of the state in prosecuting an individual. He pointed out that when government musters up evidence and takes up a case against a civilian, the civilian’s guilt is quickly presumed.

“The assumption in our society is that our government would not be pursuing you if you were innocent,” Lisby said. “You must have done something.”

He described the state’s involvement in criminal libel cases as the “800-pound gorilla in the room” that is impossible to ignore and difficult to dispute.Lisby, who teaches media law and ethics to both undergraduate and graduate students at Georgia State, said he frequently reminds his students that Georgia still has criminal libel laws on the books.He says to them, “You’ve got to be careful that when you speak, especially when you criticize government officials. There’s a chance that government official will use the criminal justice system against you. “As long as criminal libel laws are on the books, it’s not a question of can they be misused. They will be misused.”

As for the recent state legislative efforts and court decisions that are chipping away at criminal libel statues, Lisby said there is “no way they can do enough.”

He has repeatedly called for the Supreme Court to review the remaining criminal libel statues to recognize that “criminal libel has no place in modern statutory law.”

But Lisby admitted that the likelihood of the highest Court addressing the issue is fairly low, and that First Amendment advocates may have to turn to lower courts to strike down criminal libel statues.

“The general trend on the lower court level — state and appellate — is of being a little more progressive than the Supreme Court,” Lisby said. “If that’s the case, maybe we have to rely on little courts to finally get around to doing what we would like to do.”

Case: Mink v. Salazar, 004 US Dist. LEXIS 22002, 2004 WL 2430092 (D. Colo. Oct. 26, 2004), appeal docketed sub nom. Mink v. Buck, No. 04-1496 (10th Cir. Nov. 11, 2004).