A federal appeals court in Denver will hear arguments today on whether to strike down the criminal libel statute in Colorado, one of a dwindling number of states that still have such laws on the books.
Those who want the law to remain argue it has been sufficiently modified to mesh with recent court decisions defining libel – the written or published defamation of character.
Those who advocate overturning the statute, parts of which originated in 1868, call it a throwback to a time when the government could put people in jail for their words.
“When you think about countries that lock people up for things they write, you don’t think of our country,” said Mark Silverstein, legal director of the American Civil Liberties Union of Colorado, which is working on the appeal.
The case stems from the investigation of a college student, Thomas Mink, whose computer was seized by police after he criticized University of Northern Colorado officials on his satirical website, “The Howling Pig.”
The case has drawn attention from media advocacy groups that say criminal libel laws are antiquated weapons to intimidate constitutionally protected speech. The Colorado Press Association is among the groups intervening in the appeal. The Denver Post is one of 150 Colorado newspapers that belong to the press association.
David Brougham, a lawyer representing a Weld County assistant district attorney who signed a search warrant in the case, said there are instances in which using a criminal libel statute is appropriate.
Brougham pointed to a case in which a Durango man faces five criminal libel charges and a slew of others. He is accused of terrorizing female professors at Fort Lewis College and spreading lies about police officers, landlords and others, according to a story published last month in The Durango Herald.
In one instance, Davis Temple Stephenson is alleged to have written a false obituary saying someone died of AIDS, according to The Herald.
“There are occasions when this is the only vehicle to remedy the situation,” Brougham said.
Marcy Glenn, a lawyer representing Mink, the student whose computer was seized, said there are civil remedies available to those who think they’ve been libeled.
“In addition, there are other criminal statutes that apply to allegedly harassing conduct, but they do not have a chilling effect on pure speech, as the Colorado Criminal Libel Statute does,” Glenn wrote in an e-mail response to questions from The Denver Post.
Colorado is among 17 states that still have criminal libel laws. Similar laws in 33 states have been overturned or repealed since 1964, when the landmark libel law case New York Times vs. Sullivan was decided.
Mink, whose case goes before the 10th U.S. Circuit Court of Appeals, irritated a University of Northern Colorado professor by posting an altered picture of him.
In the picture, finance professor Junius Peake was made to look like Gene Simmons, bassist for the rock group KISS, complete with his trademark extended tongue. He was renamed “Junius Puke.”
The professor complained to Greeley police, who got a search warrant and took Mink’s computer during a raid of his home in December 2003. It has since been returned.
With the help of the Colorado ACLU, Mink filed a federal lawsuit, saying his civil rights had been violated and the statute was unconstitutional. He also asked that police be prohibited from prosecuting him.
U.S. District Judge Lewis Babcock issued a court order saying Mink was not to be charged in the case. But Babcock did not rule on the constitutionality of Colorado’s criminal libel law.
Will Allen, an assistant Colorado attorney general defending the law, said every state has laws on the books that have elements rendered moot by more recent court cases.
The libel law deserves to stand because it contains important protections for private individuals, as opposed to public officials, he said.
Staff writer Alicia Caldwell can be reached at 303-820-1930 or acaldwell@denverpost.com.
