Court rejects former student’s challenge of Colorado criminal libel statute

COLORADO — A federal appeals court has rejected claims made in a lawsuit challenging the state’s criminal libel statute that was filed by a former University of Northern Colorado student.

But Thomas Mink, who was investigated by police for publishing The Howling Pig, a satirical online journal, may be eligible to receive damages from the assistant district attorney who approved a search warrant for his home, the 10th U.S. Circuit Court of Appeals ruled Monday.

Greeley Police searched Mink’s home in December 2003 and confiscated his computer after University of Northern Colorado Professor Junius Peake filed a complaint after a doctored photo of him was published in the online journal, according to the ruling. Mink said the officers warned him he was in “big trouble” and that continuing to publish the journal would “make things worse” for him.

Days after the search, officers told Mink’s attorney they were pursuing charges under the state’s criminal libel law, which makes it a crime to maliciously publish false, damaging information about someone who is not a public figure.

In January 2004, Mink filed a federal lawsuit that said the criminal libel law violated his constitutional right to free speech and that he was seeking damages for the search and seizure of his property. The federal district court dismissed Mink’s case in October 2004, saying his claims against prosecutors were protected by absolute immunity, and as he was never charged under the criminal libel law, he lacked standing to challenge it.

Mink appealed the district court ruling, and on Monday, the federal appeals court ruled he did not have standing to challenge the criminal libel law because the district attorney stated he would not pursue the charges. The three-judge panel also ruled that the prosecutor did not have absolute immunity for investigative decisions and sent the case back to the federal district court for consideration. Thus the court avoided any ruling on the constitutionality of the criminal libel law.

Sixteen states have a criminal libel statute, which is different from the civil libel laws in all 50 states that allow victims of allegedly defamatory statements to seek compensation in civil court. Criminal libel laws allow the state to fine or imprison speakers of defamatory statements.

In April 2005, the Student Press Law Center joined with the Silha Center for the Study of Media Ethics and Law filed a “friend-of-the-court” brief arguing that it was time for the courts to declare all criminal libel statutes unconstitutional.

By Jared Taylor, SPLC staff writer