Colo. legislator wants to repeal state’s criminal libel statute in response to Howling Pig saga

A Senate bill in Colorado has been proposed in hopes of repealing the state’s criminal libel law.

The current law defines criminal libel as a class six felony. A person can go to jail for publishing something that “impeaches the honesty, integrity, virtue, or reputation” of another person.

The bill’s sponsor, Sen. Greg Brophy, R-Wray, said he was shocked to find out people can go to prison for comments posted on the Internet. Senate Bill 12-102 was inspired by Thomas Mink, a former student at the University of Northern Colorado, he said.

Mink published a photo of a former professor that was modified to look like KISS guitarist Gene Simmons in 2003. The professor claimed Mink violated Colorado’s criminal libel statute by publishing the photo in a satirical newsletter, the Howling Pig. The police searched Mink’s home and confiscated his computer; he spent one week in jail but the libel charges were dropped.

Eight years later, Mink settled a civil rights lawsuit against the prosecutor in the case after a judge found she violated Mink’s Fourth Amendment rights when police seized the computer. His lawyers hoped the criminal libel statute would be declared unconstitutional, but a federal appeals court never weighed in on the issue and the law remains on the books.

“I don’t think what you write should necessarily get you thrown in jail, especially along those lines,” Brophy said. “In the spirit of restoring free speech in Colorado, I decided to introduce this bill. It means you’ll have the surety that something you put on your blog, or on your Facebook, or on Twitter, won’t draw the ire of the government.”

Brophy said individuals will still be subject to civil lawsuits but won’t face the possibility of jail time with a class six felony on their record.

“If someone says you’ve harmed them or cost them damages, then you can be sued in the civil court. But, then it’s more of a fair fight because you won’t be fighting the government, which has unlimited resources,” Brophy said.

The American Civil Liberties of Union of Colorado, the Colorado Press Association and the Attorney General’s office are in favor of this bill, Brophy said. He is unaware of any opposition.

The Senate Judiciary committee will hear testimony on the bill Tuesday.

There are at least 13 states with criminal libel statutes, including Colorado. Several other states have statutes that remain on the books despite their constitutionality being put in doubt by court decisions.