10th Circuit Revives Criminal Libel Suit

In a decision released on Monday (July 19), the federal 10th Circuit Court of Appeals revived a civil rights lawsuit brought by a student whose home was searched and computer was seized after he mocked a university professor on a parody website.  By reviving the suit, the appeals court also questioned the validity of applying Colorado's criminal libel statute to satire and parody. Mink v. Knox, No. 08-1250 (10th Cir. July 19, 2010).

The case stemmed from a satirical website, The Howling Pig, that University of Northern Colorado student Thomas Mink posted online in 2004.  The site included an altered photo of UNC professor Junius Peake, with, as the appeals court described it, "dark sunglasses and a Hitler-like mustache," labeled as Junius Puke, the purported editor of the site.

Professor Peake filed a criminal complaint against the site under Colorado's criminal defamation law, Colo. Rev. Stat. § 18-13-105.  Thus statute provides that:

(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.

(3) Criminal libel is a class 6 felony.

The Colorado Supreme Court held in 1991 that the statute could not constitutionally be applied to public figures and matters of public concern, but upheld the constitutionality of the statute as applied to private figures and matters of no public concern. People v. Ryan, 806 P.2d 935 (Colo. 1991), cert. denied, 502 U.S. 860 (1991). This makes Colorado one of 16 American jurisdictions with extent criminal defamation statutes

Based on this decision, Assistant District Attorney Susan Knox gave the go-ahead for the Greeley, Colo. police to search the home that Mink shared with his mother, and to seize his computer.

Mink and his mother sued in federal court, claiming that the search and computer seizure violated their civil rights.  After the police returned the computer and the district attorney decided not the pursue the criminal case, Mink amended his federal complaint to challenge the constitutionality of the Colorado criminal libel statute.

The district court dismissed the suit on the grounds of standing and mootness, as well as the district attorney's immunity from suit.  The10th Circuit affirmed on standing and mootness, but reversed and remanded the question of whether the Knox was immune from suit. Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007).  Knox “may be entitled to qualified immunity," the court said, "if she reasonably concluded probable cause existed to support the warrant application, or that the application of the Supreme Court’s First Amendment cases to the criminal libel statute was not clearly established under the circumstances here." 482 F.3d at 1263. The U.S. Supreme Court declined to review this ruling.  Mink v. Knox, No. 07-516, 128 S.Ct. 1122, 169 L.Ed.2d 949 (U.S. Jan 22, 2008) (denying certorari).

On remand, the district court dismissed the remaining claims, holding that "a reasonable official in Knox’s position could believe that the statements in The Howling Pig were not protected statements under the First Amendment," and that "it was not clearly established that Ms. Knox’s authorization of the search warrant affidavit lacking particularity violated the Fourth Amendment."

Mink again appealed to the 10th Circuit, which reversed.  The court found that Mink has sufficiently alleged that Knox was sufficiently involved in the search to warrant a trial on his Fourth Amendment claims.  The court also held that Knox's approval of the search was improper because it could not have been based on a reasonable belief that The Howling Pig constituted a crime, because of the broad protection that U.S. Supreme Court decisions have given to satire of public figures under the First Amendment, and application of these decisions by the 10th and 1st circuits to non-public individuals.

Because a reasonable person would not take the statements in the editorial column as statements of facts by or about Professor Peake, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting search and seizure of Mr. Mink’s property. 

Mink v. Knox, No. 08-1250 (10th Cir. July 19, 2010), slip. op. at 26.

The appeals court also held that warrant used to search Mink's home and seize his computer was improperly vague, because it did not specify the alleged crime for which the search was conducted.  Id. at 28.

While the 10th Circuit decision was not a fatal blow to Colorado's criminal libel statute, since it did not hold the law to be unconstitutional on its face.  But by holding that it was improper to apply the statute to satire, it has limited how the statute can be applied.  And it points towards a view that criminal defamation is an archaic concept that should not be sustained under the modern view of the First Amendment.