COLORADO — A former University of Northern Colorado studentwill appeal a federal judge’s decision to dismiss his lawsuit against aprosecutor to the 10th U.S. Circuit Court of Appeals. Thomas Mink filed a noticeof appeal July 11 and will continue pursuing his claim that a deputy districtattorney wrongfully approved a warrant to search his home and seize his computerwhile investigating a criminal libel accusation against Mink in 2003.
A professor at the university, Junius Peake, had alleged that doctoredphotos and parody columns that Mink published in his online journal, TheHowling Pig, defamed Peake. The Web newsletter contained a photograph of thefinance professor altered to look like KISS guitarist Gene Simmons. A captionbelow the photo described “Mr. Junius Puke” as thenewsletter’s founder, spiritual leader and inspiration — and adisclaimer warned readers against confusing Peake, “an upstanding memberof the community,” with the depicted publication’s editor”Puke.”
Susan Knox, deputy district attorney, approved a search warrant for Greeleypolice to investigate Mink after Peake complained, but her office never pressedany charges.
Mink filed his lawsuit in 2004, arguing the state’s criminal libellaw and the investigation violated the First Amendment. He also said Knox owedhim damages for her role in reviewing the search warrant application.
The federal district court refused to address the criminal libelstatute’s constitutionality, ruling that Mink could not contest the lawbecause he was never charged under it. And an appeal was unsuccessful on thatclaim, though the Student Press Law Center and the Silha Center for the Study ofMedia Ethics and Law asked the appeals court to allow the challenge to goforward. The organizations filed a joint brief arguing that the criminal libelstatute should be struck down because no such law could satisfy the strictscrutiny that content-based speech restrictions on speech must undergo tosurvive a constitutional challenge.
However, the appeals court did allow Mink to continue his case againstKnox.
In district court in June, Judge Lewis T. Babcock ruled that Knox wasentitled to qualified immunity, which generally protects most public officialsfrom being sued for actions performed as a part of their official duties, ifthey act reasonably according to the legal standards of their state.
A reasonable official in Knox’s position could believe that thestatements in The Howling Pig were not protected statements under theFirst Amendment and could violate the state’s criminal libel law,justifying the warrant, Babcock concluded.