The Rocky Mountain News reports:
A Weld County man is suing Greeley police for seizing the computer on which he publishes an online newsletter called The Howling Pig, which takes satirical barbs at a vocal university professor.
Thomas Mink, of Ault, a 24-year-old English major at the University of Northern Colorado in Greeley, said police have warned that he likely will be charged with criminal libel because The Howling Pig makes fun of Junius “Jay” Peake, a Monfort Distinguished Professor at UNC and a specialist in financial markets.
The Howling Pig, online at www.geocities.com/thehowlingpig/, says its editor, founder and spiritual leader is “Junius Puke,” an apparent play on Peake’s name. The newsletter describes Puke as a former roadie for the band KISS who is taking time off “from his well-earned, corporate endowed sinecure at a small western university in order to assist in the publication of The Howling Pig.”
A disclaimer states that Puke is not Peake. It goes on to describe Peake as “an upstanding member of the community as well as an asset to the Monfort School of Business where he teaches about microstructure.”
In one issue, a column purportedly written by the fictitious “Junius Puke” criticized UNC Board of Trustees Chairman Dick Monfort as “too stupid and irresponsible for the ‘Party’ to give you any real power” and said the governor put Monfort on the board because he is a wealthy campaign contributor.
The Puke column urged Monfort to resign from the UNC board and live at the Greeley Country Club. . . .
No subsequent issues [of The Howling Pig] have appeared.
“We have another one more or less ready to go, but nobody wanted to do it for fear that we’d go to jail,” Mink said in an interview Thursday. . . .
Criminal libel statutes are very rarely enforced, but if properly drafted, they are likely constitutional. The seizure of the computer might possibly be constitutional as well, because the computer contains evidence that may be relevant to the prosecution.
But, first, this particular criminal libel statute (Colo. Rev. Stat. ? 18-13-105) is almost certainly unconstitutional:
(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.
(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.
To be constitutional, criminal libel statutes must at least (1) be limited to situations where the speaker knows the statements are false, or is reckless about whether they’re false (negligence sometimes suffices for compensatory damages, but not for punishment), and (2) put the burden of proving falsehood on the prosecution, rather than putting the burden of proving truth on the defendant. (A statute limited to speech on matters of purely private concern might possibly omit these requirements, but this statute is not so limited.) This statute does not follow these two rules; and while a court might conceivably read an implicit knowledge/recklessness requirement into the statute (the coverage of the term “knowingly” in paragraph 1 is ambiguous), it probably won’t just ignore the specific provision that the defendant must prove truth. A court thus ought to strike down the statute on its face, and leave it to the legislature to enact a properly bounded statute. (NOTE UPDATE BELOW.)
Second, while the site no longer seems to be available (UPDATE: I’m told that it’s still up, but hard to access because too many people are trying to read it), it sounds like the statements would be clearly understood as parody or fiction, and not factual allegations. This would make them categorically protected, against criminal libel prosecution or civil libel lawsuits.
And, third, my sense is that these sorts of criminal libel prosecutions, seizures, and arrests almost invariably involve favoritism on the part of the government. Seriously, what do you think the average Joe’s chances would be of getting the police to seize a computer that was being used to say nasty things about him? Pretty low, I’d wager; the police would quite reasonably point out that they’ve got better things to do than intercede into this sort of dispute, especially over a parody, and especially when the criminal libel statute is old and quite likely unconstitutional. As I mentioned, criminal libel prosecutions are very rare. So, I suspect, criminal libel law ends up punishing not libel generally, but libel against people who are prominent or influential, or with whom the police and prosecutors sympathize. (And, as we see here, it can be used to deter even speech that isn’t actually libelous.)
UPDATE: Reader Dave Heller pointed out a case that I had missed, in which the Colorado Supreme Court disagreed with the above analysis — People v. Ryan, 806 P.2d 935 (Colo. 1991). In Ryan, the court held that (1) the criminal libel statute was constitutional except when the speech is about a public figure and on a matter of public concern; and (2) it was constitutional to place on the defendant the burden of proving falsity. I think it’s wrong on both counts: I think the statute is unconstitutionally overbroad even as modified, because (1) it punishes even negligent or reasonable mistakes of fact about private figures on matters of public concern — speech that, under Gertz v. Robert Welch, may not be punished — and (2) it improperly leaves the defendant with the burden of proving truth in private figure/public concern cases, which is unconstitutional under Philadelphia Newspapers v. Hepps. But obviously the Colorado courts disagree with me on this. It will be interesting to see what the federal courts in Colorado think; Mink filed the lawsuit in federal court, and while lower Colorado courts are bound by the Colorado Supreme Court’s decision, federal courts aren’t. (Of course, the point I mention above under “Second” remains valid even if the Colorado Supreme Court decisions is accepted.)
Heller also writes:
In Colorado there has been at least one subsequent conviction for what appears to be a private libel. [ In 1996, an Arapahoe County man was sentenced to 45 days in jail and 200 hours of community service after being convicted of criminal libel for publishing fliers that falsely accused his daughter’s grandparents of molesting children. See Suburban news briefing: False charges earn jail time, Rocky Mtn. News, Jan. 6, 1996, at 24A.]
But in two instances state prosecutors reportedly investigated bringing charges against the media — a religious talk show for disparaging statements about homosexuality; and, quite curiously over press coverage of the Jon Benet Ramsey murder case.
Colorado thus seems a bit more willing to use criminal libel prosecutions than other states are — but such prosecutions are still very rare, even in Colorado.
FURTHER UPDATE: J.B. Holston reports that “The ACLU was granted its temporary restraining order in [this case], and the student’s (and his mother’s) computer will be returned tomorrow.”
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