In a disappointing decision for criminal libel law opponents, the United States Court of Appeals (Tenth Circuit) in Denver declined to rule on the constitutionality of Colorado’s criminal libel law in an opinion handed down in April 2007, Mink v. Suthers, 2007 WL 1113951 (10th Cir. Apr. 16, 2007)(formerly titled Mink v. Salazar, 344 F. Supp. 2d 1231 (D. Colo. 2004)).
The case centered upon University of Northern Colorado (UNC) student Thomas Mink’s Internet-based, student-run journal, The Howling Pig, and Mink’s parody columns in the journal about UNC Professor Junius Peake. In the fall of 2003, Mink began writing columns under the pseudonym “Junius Puke.” The columns featured a photograph of Peake with a Photoshopped Hitler-style mustache and dark sunglasses. In court filings, Mink said the purpose of the column was to “spoof and parod[y] Professor Peake by addressing subjects on which the real professor would be unlikely to write, or through the assertion of views diametrically opposed to those of Professor Peake.”
Upon learning of the columns, Peake contacted a local District Attorney and filed a complaint alleging that he was the victim of criminal libel. Colorado’s criminal libel statute makes it “criminal libel” to knowingly publish any statement tending 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.” Colo. Rev. Stat. section 18-13-105.
After receiving the complaint, the Greeley (Colo.) Police Department began an investigation, during which they sought a search warrant for Mink’s residence and property, including his computer. Deputy District Attorney Susan Knox read and approved the Police Department’s search warrant affidavit, and the warrant was later approved by a magistrate judge.
On Dec. 12, 2003, Mink’s home was searched and his computer and some of his writings were confiscated. He also claims police told him he was in “big trouble” and warned him that resuming publication of the Howling Pig would “only make things worse” for him.
Mink obtained counsel, and on Dec. 23, 2003, his lawyer was told a criminal libel charge would be filed against Mink. His counsel immediately sent the District Attorney a letter arguing the libel law could not be constitutionally applied against Mink and demanded return of Mink’s possessions. When the letter went unanswered, Mink filed suit in federal district court on Jan. 8, 2004, seeking a declaration that the law be declared unconstitutional. He also sought damages for the search and seizure and requested a temporary restraining order.
The next day, the district court ordered Mink’s possessions returned to him immediately. It later convened a conference with the District Attorney, who informed the court that the office had decided it could not constitutionally prosecute Mink under the libel statute and planned to close the file.
On Feb. 19, 2004, Mink filed an amended complaint, realleging that the Colorado criminal libel statute was unconstitutional and adding the Colorado Attorney General, the local District Attorney, and Deputy District Attorney Knox as defendants.
On Oct. 26, 2004, the District Court dismissed Mink’s suit in its entirety, finding that he lacked standing to challenge the constitutionality of the statute and that his claims against Knox were barred by the doctrine of absolute prosecutorial immunity.
Mink appealed to the Tenth Circuit, and numerous media advocates, including the Silha Center and the Student Press Law Center, among others, filed amicus briefs. The Silha Center and Student Press law Center’s joint brief urged the court to strike the criminal libel law as unconstitutional and inconsistent with the First Amendment, contending that civil defamation laws can adequately protect plaintiffs without causing as much harm to free speech.
“If this court does not find that a student arrested solely for his speech has standing to challenge the unconstitutionality of the underlying statute he supposedly violated, it will be giving a green light to police and prosecutors who use these statutes to intimidate speakers who are young and politically powerless but who have exercised their constitutional right to criticize government employees,” the Centers argued. “By the expedient of dropping a matter before a person is charged, prosecutors can perpetuate the use of criminal libel statutes as tools to harass and intimidate speakers into silence even when the statutes themselves are unconstitutional.” (The Centers’ brief in its entirety can be viewed at http://www.silha.umn.edu/resources.htm. For further information, see “Silha Center Joins Student Press Law Center in Amicus Brief” in the Winter 2005 issue of the Silha Bulletin).
The case was argued in January 2006. Thirteen months later, the Tenth Circuit declined to rule on the constitutionality of Mink’s claims, instead finding that because the District Attorney had decided not to prosecute Mink and had closed the file, Mink no longer had standing to sue.
Judge Timothy M. Tymkovich, writing for the three-judge panel of the court, wrote, “Without a live, concrete controversy, we lack jurisdiction to consider claims no matter how meritorious.” He continued, “Because we conclude Mink faces ‘no credible threat of prosecution’ under the criminal libel statute, he lacks standing to pursue his claims for prospective relief.” For the same reasons, he also found Mink’s claims to be moot and thus the court could not reach the merits of Mink’s constitutional claim.
The court also held that Mink’s damages claims under the Privacy Protection Act, 42 U.S.C. section 1983, against Knox failed because the Act makes it unlawful to search for or seize any work product materials made by a person with intent to disseminate the information to the public. It held that in this case, Knox only approved the search warrant; she did not herself do any searching or seizing.
The court did overturn the district court in one aspect of the case. It found that Mink’s damages claims against Knox based on her review of the search warrant could not be denied on the basis of prosecutorial immunity. The court ruled that prosecutors do receive absolute immunity when working in their role as advocates; however, they could not receive immunity in their role as administrators or investigative officers. Because the court found Knox was acting in the latter capacity when she approved the search warrant, the court remanded the case to the district court with instructions to consider Knox’s qualified immunity claims under their elaborated framework.
As the Bulletin went to press, there was no word on whether either party would appeal.
– Ashley Ewald, Silha Fellow and Bulletin Editor