Authorities in Colorado and Wisconsin have charged three people with criminal libel in separate incidents all involving the Internet. The charges concern commentators who argue that it is constitutionally impermissible to criminalize speech.
Colorado Man Faces Criminal Libel Charges from Craigslist Rant
A Loveland, Colo. man faces two counts of felony criminal libel charges for unflattering comments made about a former lover and her attorney on the Craigslist Web site.
According to a Dec. 2, 2008 Associated Press (AP) story, the case began when a woman told Loveland police in December 2007 about posts made about her on Craigslist’s “Rants and Raves” section between November and December 2007. Court records show that the posts 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.
Detectives confronted J.P. Weichel about the posts at his workplace in August 2008. Weichel, who fathered a child with the complainant, said he was “just venting” when he made the comments.
Colorado law states that any 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.” The truth of the statement can be used as a defense against the charge, “except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.” Colo. Rev. Stat. 18-13-105.
Thomas Kelley, an attorney with the Denver office of the law firm Levine Sullivan Koch & Schulz, criticized the charge in a Dec. 2, 2008 ABC News report. “Criminal libel is just an anachronism,” he said. “Using the criminal law to punish speech is just such an ugly display of the power of the state that I think most law enforcement officers would tell someone with a complaint like that to file a civil action.”
Colorado Man Charged with Criminal Libel for Allegedly Doctoring Photos
In an unrelated incident, another Colorado man was recently charged under the same Colorado statute for allegedly digitally doctoring photographs of a woman.
According to a November 2 story in The Pueblo Chieftain, Robert Ezekiel Tafoya was charged with one felony count of criminal libel, according to court records.
According to the Chieftain, District Attorney Bill Thiebaut said Tafoya used computer programs to alter pictures of the complainant.
“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 the complainant] and those pictures were being used to ridicule her.”
Thiebaut did not elaborate on the relationship between Tafoya and the person depicted in the photographs or what the doctored photos depicted, except to say that they cast the complainant “in a compromising position,” the story said.
“There were some really deep-seeded [sic] motives on (Tafoya’s) part to depict this person in a certain way,” Thiebaut told the newspaper.
The Chieftain reported that sources familiar with the Pueblo court system said they cannot recall any previous criminal libel charges in the jurisdiction.
The December 2 ABC News story on the Colorado cases attributed the recent rise in criminal libel charges to the proliferation of the Internet.
“Many people convince themselves it’s anonymous,” said Sandra Baron, director of the New York-based Media Law Resource Center, according to the ABC News story. “And, of course, the reach of the Internet is such that once it’s out there, it’s so widespread and so provocative that it inspires people to want to take action to stop it.” Colorado’s criminal libel laws have been challenged on constitutional grounds before. In 2007, the United States Court of Appeals for the Tenth Circuit declined to strike down the statute in Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007), a case that involved a University of Northern Colorado college student’s satirical online publication used to spoof a UNC professor. (See “Tenth Circuit Declines to Strike Down Colorado’s Criminal Libel Law After Finding Student’s Challenge Moot” in the Spring 2007 Silha Bulletin.)
The Silha Center joined the Student Press Law Center in an amicus brief filed with the 10th Circuit in Mink. The brief argued that criminal libel is “facially and ideologically inconsistent with the principles of the First Amendment.” (See“Silha Center Joins Student Press Law Center in Amicus Brief” in the Winter 2005 Silha Bulletin.)
In a 2004 blog post regarding the Mink case on the legal blog The Volokh Conspiracy, University of California, Los Angeles law professor Eugene Volokh criticized the arbitrary nature of criminal libel.
“My sense is that these sorts of criminal libel prosecutions, seizures, and arrests almost invariably involve favoritism on the part of the government,” Volokh wrote. “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.”
In 1991, the Colorado Supreme Court held in People v. Ryan, 806 P.2d 935 (Colo. 1991), that its criminal libel statute was constitutional as applied to matters of private concern. The court also upheld the statute’s classification of truth as an affirmative defense, placing the burden of proof on the defendant.
In 1964, the U. S. Supreme Court in Garrison v. Louisiana, 379 U.S. 64 (1964), held that in cases regarding matters of public concern about public figures, a defendant could not 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. The court did not hold that criminal libel statutes were per se impermissible.
Wisconsin Woman Pleads Guilty to Criminal Libel Charges
Laura Lee Janzig pleaded no contest in October 2008 to charges of criminal defamation in Superior, Wis. for sending e-mails to members of the local school board alleging that a local teacher was having sex with her students and videotaping it.
Janzig, of nearby Duluth, Minn., was charged under a Wisconsin statute, Wis. Stat. 942.01, which states that “Whoever with intent to defame communicates any defamatory matter to a 3rd person without the consent of the person defamed is guilty of a Class A misdemeanor.” The statute defines defamatory matter as anything which exposes its subject to “hatred, contempt, ridicule, degradation or disgrace in society or injury in the other’s business or occupation.” The law does not apply if the subject matter was true or “communicated with good motives and for justifiable ends.”
According to an Oct. 29, 2008 story from the Northland’s NewsCenter, a news Web site for Northern Minnesota and Wisconsin, the emails from Janzig anonymously alleged that the inappropriate behavior took place between the Superior teacher and several of her male and female students.
The accused teacher was put on administrative leave while the allegations were investigated by the Superior Police Department, and the e-mails were later traced to Janzig, who was dating a former boyfriend of the accused teacher.
On Dec. 8, 2008 Janzig was sentenced to 20 days in jail, a $100 fine, and one year of probation, according to court records.
– Jacob Parsley
Silha Research Assistant