482 F.3d 1244 (10th Cir. 2007)
In December 2003, Thomas Mink published articles on his website that criticized Junius Peake, a finance professor at his school, the University of Northern Colorado. The posts included photographs that were modified to look like KISS guitarist Gene Simmons and included the caption “Mr. Junius Puke.” When the professor heard of the posts, he contacted the Greeley Police Department seeking to press charges under the state’s criminal libel statute. Shortly after, police searched Mink’s home and confiscated his computer. Mink spent a week in jail, but ultimately no charges were filed. With the help of the American Civil Liberties Union of Colorado, Mink sued, alleging the state’s criminal libel statute violated the First Amendment and that the police search violated his Fourth Amendment right against unreasonable searches and seizures. A federal district court dismissed Mink’s case, saying the district attorneys responsible for signing off on the search were protected by absolute immunity and that Mink lacked the standing to challenge the criminal libel statute because he was never charged under it. Mink appealed the ruling to the Tenth Circuit Court of Appeals, where the SPLC filed an amicus brief.
The SPLC argued that that Mink had standing to challenge the criminal libel statute and that the lower court’s ruling upholding the statute would have a chilling effect on student speech. Mink had standing because his rights were violated and he still incurred a significant financial burden even though no charges were ultimately filed. Under these circumstances, the complainant incurred enough of a burden to file charges. The brief argues that criminal libel statutes are inconsistent with the First Amendment and have a chilling effect on speech. Students are particularly affected because they often lack the financial means to challenge threats of criminal libel prosecution. Students who lack financial backing will have trouble fighting charges and most will tailor their speech to avoid controversy.
The Court of Appeals held that Mink lacked standing to bring the First Amendment claim because he was never prosecuted under the libel statute and could not establish a “credible fear of prosecution.” The court also ruled that the district attorny was not entitled to absolute immunity and remanded the case.