COLORADO — A Colorado commission thatreviews criminal laws voted Friday to repeal a statute that makes it a crime tosteal free newspapers, arguing that the legislation has clogged up the state’sjustice system.
A taskforce of the Colorado Commission on Criminal and Juvenile Justice made arecommendation to the full commission as part of an ongoing effort to rid thestate of “boutique crimes” — those that unnecessarily complicate the criminalcode.
Theoverall motion to reform the state’s theft laws — of which the newspaper theftlaw was a part — passed by a vote of 17-1, with four members casting neutralvotes.
Whilethe commission’s vote is only a recommendation and must be approved by theColorado legislature, Friday’s decision prompted a negative response from theFirst Amendment community.
“They’reessentially trying to give anybody the ability to remove newspapers from a boxand deprive the public of information, and that’s a form of censorship,”Colorado Press Association Executive Director Samantha Johnston said.
Thenewspaper theft law was passed in 2004 after a state prosecutor said that nocrime had been committed when nearly every copy of a local free-distributionnewspaper was taken from the racks. The prosecutor argued the papers had novalue and were a form of abandoned property.
Underthe law, the theft of free newspapers is classified as a misdemeanor. Violatorswho steal more than five but less than 100 newspapers can be fined up to$1,000. Theft of between 100 to 500 newspapers can result in a fine of up to$2,500, while those who steal more than 500 may have to pay as much as $5,000.
Californiaand Maryland have similar statutes that criminalize the theft of freenewspapers.
Colorado’slaw also includes a provision authorizing free-distribution newspaperpublishers, advertisers or readers to file a civil suit against someone whocommits newspaper theft.
“Ifsomeone can just walk in and take the paper off the stands, to me it’s theft,”said former state Rep. Carl Miller, D-Leadville, who sponsored the bill.
Milleradded that doing away with the law would also be unfair to advertisers who payfor space in free publications.
However,Doug Wilson, the state public defender and a commission member, believes thelaw serves little purpose.
Stealinga free publication is “entirely different than somebody breaking into a machineand stealing The Denver Post or going into a conveniencestore and stealing something that has value attached to it,” Wilson said.
Colorado,Wilson explained, is a state that bases its criminal theft statutes on a“value-added” philosophy. When charging and prosecuting criminals for theft,its primary concern is what the value attached to the stolen item was.
“Thisisn’t a First Amendment issue,” he said. “We didn’t do it because we’re tryingto censor people. We did it because some in the newspaper industry have decidednot to put a value on their product.”
Wilsonand other commission members cited the fact that there have been only fivecases since 2004 in which someone was charged under the statute.
“Becauseof this, we believe that this was a law that was not being utilized, wasovercomplicating the criminal justice system and didn’t need to be on the booksanymore,” he said.
However,Student Press Law Center Executive Director Frank LoMonte was not persuaded bythe law’s lack of use.
“Idon’t see the harm in having a statute that may be serving a meaningfuldeterring purpose,” LoMonte said, pointing out that the state has useddiscretion in applying the law in a criminal justice setting.
LoMonteis particularly concerned with the potential impact the commission’srecommendation could have on Colorado student media. Student publications, hesaid, are disproportionately singled out for theft by fellow students, facultyor administrators who want to censor their messages.
“It’swell documented that groups on campus will use theft as a tactic ofcensorship,” LoMonte said.
Ifnothing else, he added, it is important to have a statute on the books to clearup any uncertainty in the minds of campus police that it is a crime to steal astudent newspaper.
Movingforward, Johnston — who expressed disappointment over the commission’s lack ofinvolvement of the newspaper industry throughout the process — expects astatewide response in reaction to Friday’s recommendation.
“Wefully support cleaning up the statute and making sure nothing’s jamming up thesystem,” she said. “If newspaper theft were to merely fall under a differenttitle, that might be a conversation we’d be willing to have.”
At theend of the day, LoMonte sees the commission’s action as sending the wrongmessage.
“Lawor no law, it should be clear that it’s illegal to steal anything, whetherthere’s a price tag on it or not,” he said. “Repealing the law risks givingthose on the ground the idea that the state is legalizing theft, and that’s adangerous statement.”
By Seth Zweifler, SPLC staff writer