The Volokh Conspiracy - Criminal Libel in Colorado, Again in the News:

Two stories from the past month. ABC News reported yesterday:

A man [J.P. Weichel] accused of making unflattering online comments about his former lover and her attorney on Craigslist has been charged [in October] with two counts of criminal libel....

The case began when a woman told Loveland police in December 2007 about postings made about her between November and December 2007. Court records show posts that suggested she traded sexual acts for legal services from her attorney and mentioned a visit from child services because of an injury to her child.

Police obtained search warrants for records from Web sites including Craigslist before identifying Weichel as the suspect. Weichel shares a child with the woman....

And from The Pueblo Chieftain a month ago:

Prosecutors this week invoked an arcane, seldom-used statute to charge a Pueblo County man for allegedly disseminating false information about someone.

Robert Ezekiel Tafoya, 51, was charged with one felony count of criminal libel, according to court records. Convictions for the offense are punishable by up to 18 months in prison for first-time offenders....

District Attorney Bill Thiebaut said Tafoya used modern technology, in this case computer programs, to alter pictures of his accuser.

"The investigation showed that the defendant pasted pictures of the face of one person onto the body of other persons and published or disseminated the pictures electronically to others," Thiebaut said. "We believe it impeached the reputation (of his accuser) and those pictures were being used to ridicule her." Thiebaut would not elaborate on the relationship between Tafoya and his accuser, or what the doctored photos depicted, except to say that they cast Tafoya's accuser "in a compromising position."

For more recent items from other states, see this Reporters' Committee for Freedom of the Press page.

Colorado is one of the substantial minority of states that still has criminal libel laws. Many people have argued that criminal libel laws are unconstitutional, but the Supreme Court has never so held. The Court's most recent decision about this, Garrison v. Louisiana (1964), required that in cases on matters of public concern about public figures a defendant couldn't be held liable unless the prosecution could prove that the defendant knew the statement was false, or was aware of a high probability that it was false. I'm pretty sure, given later cases, that the same would be true in cases on matters of public concern about private figures. But the Court has not gone further to hold that all criminal libel laws are per se impermissible, and it also has not spoken to what could be done when the statement is false and on a matter of purely private concern, which the statements in these cases likely qualify as being.

The Colorado Supreme Court has held that its current criminal libel statute was constitutional, at least as to statements on matters of private concern, and has even said that it was constitutional to place on the defendant the burden of proving truth. See People v. Ryan, 806 P.2d 935 (Colo. 1991). I think the court was wrong about the current statute, because the statute is unconstitutionally overbroad even as modified by the court decision: (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.

	[Eugene Volokh, December 3, 2008 at 6:48pm] Trackbacks Criminal Libel in Colorado, Again in the News: Two stories from the past month. ABC News reported yesterday: A man [J.P. Weichel] accused of making unflattering online comments about his former lover and her attorney on Craigslist has been charged [in October] with two counts of criminal libel.... The case began when a woman told Loveland police in December 2007 about postings made about her between November and December 2007. Court records show posts that suggested she traded sexual acts for legal services from her attorney and mentioned a visit from child services because of an injury to her child. Police obtained search warrants for records from Web sites including Craigslist before identifying Weichel as the suspect. Weichel shares a child with the woman.... And from The Pueblo Chieftain a month ago: Prosecutors this week invoked an arcane, seldom-used statute to charge a Pueblo County man for allegedly disseminating false information about someone. Robert Ezekiel Tafoya, 51, was charged with one felony count of criminal libel, according to court records. Convictions for the offense are punishable by up to 18 months in prison for first-time offenders.... District Attorney Bill Thiebaut said Tafoya used modern technology, in this case computer programs, to alter pictures of his accuser. "The investigation showed that the defendant pasted pictures of the face of one person onto the body of other persons and published or disseminated the pictures electronically to others," Thiebaut said. "We believe it impeached the reputation (of his accuser) and those pictures were being used to ridicule her." Thiebaut would not elaborate on the relationship between Tafoya and his accuser, or what the doctored photos depicted, except to say that they cast Tafoya's accuser "in a compromising position." For more recent items from other states, see this Reporters' Committee for Freedom of the Press page. Colorado is one of the substantial minority of states that still has criminal libel laws. Many people have argued that criminal libel laws are unconstitutional, but the Supreme Court has never so held. The Court's most recent decision about this, Garrison v. Louisiana (1964), required that in cases on matters of public concern about public figures a defendant couldn't be held liable unless the prosecution could prove that the defendant knew the statement was false, or was aware of a high probability that it was false. I'm pretty sure, given later cases, that the same would be true in cases on matters of public concern about private figures. But the Court has not gone further to hold that all criminal libel laws are per se impermissible, and it also has not spoken to what could be done when the statement is false and on a matter of purely private concern, which the statements in these cases likely qualify as being. The Colorado Supreme Court has held that its current criminal libel statute was constitutional, at least as to statements on matters of private concern, and has even said that it was constitutional to place on the defendant the burden of proving truth. See People v. Ryan, 806 P.2d 935 (Colo. 1991). I think the court was wrong about the current statute, because the statute is unconstitutionally overbroad even as modified by the court decision: (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.