Jailed for speech: Criminal libel is an old — and bad — idea

Sunday, January 18, 2004

In northern Colorado, 21st-century technology has run head-on into 13th-century legal principles.

A computer owned by the publisher of a Web-based newsletter called The Howling Pig was seized by Greeley police last month as part of an investigation into felony criminal libel, a crime punishable with a jail term.

Criminal libel has its origins in the notorious English Star Chamber of 1488, while cases in the United States go back to the 18th century. The Colorado law – passed in 1963, but couched in language that betrays its ancient roots – bans statements “tending to blacken the memory of one who is dead” or that “impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive.”

The threat of prosecution came as a surprise to Thomas Mink, whose satirical newsletter pokes fun at the University of North Colorado and raises questions about the campus and community.

“While we are currently aiming for a combination of satire and commentary, we will try to avoid publishing anything blatantly lawsuit-worthy,” Mink stated in his first edition. Early issues included commentary on diversity, campus beautification and the performance of a university trustee.

To spice up the first issue, Mink doctored a photograph of well-known UNC finance professor Junius Peake so that he resembled Gene Simmons of KISS in full makeup. Mink described his digital creation as “Junius Puke,” editor in chief of the publication.

Taking no chances, Mink went on to note that no one should confuse Puke and Peake, and that Mr. Peake was “an outstanding member of the community as well as asset to the Monfort School of Business where he teaches about microstructure.”

This salute didn’t placate the professor, who alerted the Greeley police. In short order, police came to seize Mink’s computer, effectively shutting down The Howling Pig.

In pursuing criminal charges against Mink, the police department embraced archaic law, long overturned in most states and discredited in others. It was as though they had run around town handing women scarlet A’s to wear.

Criminal-libel law stems from a time when people could be jailed for damaging someone’s reputation. Inevitably, the prosecution would be on behalf of the politically powerful.

All that changed in 1964, when the U.S. Supreme Court concluded that public officials (later broadened to include public figures) could not win a libel verdict or secure a criminal-libel conviction without proving that the report was made with “actual malice,” and either published with the knowledge that it was untrue or done with a reckless disregard for the truth. Lower courts around the country then tossed out these outdated and dangerous criminal-libel laws as unconstitutional restrictions on free speech.

We live in a nation in which we are free under the First Amendment to criticize public officials, but with an antique law like this on the books, police still have the tools to arrest you for making unflattering comments.

Colorado is not the only state living in the past. Criminal-libel laws can also be found in Florida, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia, Washington and Wisconsin, along with Puerto Rico and the U.S. Virgin Islands. In fact, a criminal-libel conviction of an alternative newspaper publisher is on appeal in Kansas.

There’s no justification for keeping these laws on the books. A free society doesn’t threaten citizens with jail for exercising their freedom of speech. If someone writes an article that is defamatory, a plaintiff can sue and recover monetary damages. The system works.

The good news is that last week U.S. District Judge Lewis Babcock took a close look at The Howling Pig and ordered that Mink’s computer be returned.

“Even our colonialists of America engaged in this type of speech, with great lust and robustness,” Babcock said as he barred Mink’s prosecution.

Mink’s online newsletter raised legitimate questions about University of North Colorado policies, including, ironically, its restrictive free-speech zones. Political commentary and satire shouldn’t be punished in America, even if a professor doesn’t like the way he looks in makeup.

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