COLORADO — The 10th U.S. Circuit Court of Appeals ruled Tuesday thatformer University of Northern Colorado student Thomas Mink can sue a deputydistrict attorney for damages resulting from her approval of a warrant to searchMink’s home and seize his computer for posting a website mocking a professor in2003.
While Mink was a student at UNC, he was webmaster of an online journalcalled The Howling Pig. Junius Peake, a finance professor at theuniversity, claimed the website defamed him when it published a photo of Peakealtered to look like KISS guitarist Gene Simmons, and described the photo as apicture of “Mr. Junius Puke” and told readers not to confuse Peake with”Puke.”
Deputy District Attorney Susan Knox issued the warrant for Mink’s computerafter receiving a complaint from Peake about the website. Mink was arrested andhis computer confiscated on the grounds that he violated the criminal libelstatute.
Mink filed a lawsuit in 2004 claiming that the state’s criminal libel lawviolated the First Amendment. Knox’s office never pressed the criminal libelcharges.
Bruce Jones, an attorney at Holland & Hart, worked with the AmericanCivil Liberties Union to represent Mink and said he and the ACLU are happy withthe latest ruling. Jones said that unless the defense decides to try to obtainfurther appellate review, they will go back to the district court and resumepursuit of the claim against Knox.
“The issues in the case have evolved somewhat over time, but those thatwere just decided are very important issues particularly because they go to themanner in which the Colorado’s criminal libel statute can be applied to chillwhat should be protected speech,” Jones said. “That’s a very important issue andone that was worth pursuing and continuing to pursue.”
In July 2008, federal district court Judge Lewis T. Babcock ruled that Knoxwas entitled to qualified immunity, which can protect public officials frombeing sued for actions performed as a part of their official duties. The 10thCircuit reversed that ruling, finding that Knox was not entitled to qualifiedimmunity because a reasonable person would understand that parody was notlibelous.Jones said that he felt it was important to stick with thiscase for nearly seven years.
“My reaction at the time that I first heard of this was this is so clearlyunconstitutional and wrong I can’t imagine that it would take place and it’sonly taken seven years for that reaction to have been vindicated,” Jonessaid.