On January 8, 2004, the ACLU filed this lawsuit and asked for an emergency order to stop Weld County law enforcement authorities from pursuing a criminal investigation and prosecution of Thomas Mink, the publisher of The Howling Pig, an Internet-based publication that features satiric commentary on issues of public concern to the University of Northern Colorado (UNC) community.
The Howling Pig began publishing in the fall of 2003. After three issues, Greeley police appeared at Mr. Mink's home with a search warrant. They announced that they were investigating a felony charge of "criminal libel." They confiscated Mr. Mink's computer and all electronically-stored files and data.
Colorado's rarely-used criminal libel statute makes it a felony to publish statements "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." A number of antiquated statutes with similar language have been held unenforceable in other states.
The Court issued an emergency ruling ordering the return of Mr. Mink's computer and temporarily forbidding the threatened prosecution. On January 20, 2004, the Weld County District Attorney announced that his office would not file charges based on what The Howling Pig had published to date.
In an amended complaint, the ACLU sought a declaratory judgment that Colorado's criminal libel statute is unconstitutional, as well as compensation for violations of the First and Fourth Amendments.
In October, 2004, the Court ruled that the Plaintiffs had no standing to challenge the constitutionality of the criminal libel statute. The Court dismissed all claims, and ACLU lawyers appealed.
In 2007, the Tenth Circuit held that the facial challenge to the criminal libel statue was moot. The court also held that the prosecutor who approved the warrant to search Mink's home, Susan Knox, was not entitled to absolute immunity. The case was sent back to the district court for resolution of the claim that Mink's home was searched illegally. Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007).
On remand, the district court held that the prosecutor had qualified immunity, and the suit was again dismissed. ACLU lawyers appealed a second time.
In 2010, the Tenth Circuit ruled that the search warrant violated clearly established law and the prosecutor was not entitled to qualified immunity. Mink v. Knox, 613 F.3d 995 (10th Cir. 2010). In June 2011, Judge Babcock granted Tom Mink's motion for summary judgment. The prosecutor appealed. As the case was on its third trip to the Court of Appeals, a settlement in late 2011 ended the case.
In the following legislative session, the General Assembly repealed the Colorado statute that made "criminal libel" a crime.
ACLU news releases:
- "ACLU sues to stop Weld County Criminal Libel Investigation," ACLU News Release, January 8, 2004
- "ACLU names Colorado Attorney General as defendant in challenge to criminal libel statute and settles claims against City of Greeley," ACLU News Release, February 19, 2004
- "ACLU wins major victory in longstanding defense of student journalist," ACLU News Release, July 19, 2010
- "Eight years later, "The Howling Pig" free speech case reaches settlement," ACLU News Release, December 12, 2011
Media:
- “District attorney clears Howling Pig,” Greeley Tribune, January 19, 2004
- “Weld DA’s office cleared in’Howling Pig’ case,” Greeley Tribune, October 27, 2004
- “Criminal libel statute goes to appeals court,” The Denver Post, January 8, 2006
- “Thomas Mink and The Howling Pig: ACLU's illegal search case moves forward six years later,” Westword, July 20, 2010
- “Court rules former Howling Pig webmaster can sue prosecutor who authorized search warrant,” Student Press Law Center, July 21, 2010
- “Prosecutor Can Be Personally Sued Over Search of Journalist's Home, 10th Circuit Rules,” ABA Journal, July 21, 2010
- "Court holds prosecutor personally liable for unconstitutional search of student who created a parody newsletter," FIRE News, June 7, 2011
- "After 8-year legal battle, judge finds Howling Pig editor's rights were violated," Student Press Law Center, June 3, 2011
-
“Howling Pig case resurfaces,” Reporters Committee for Freedom of the Press
- "Free-speech suit settled in 'Howling Pig' case," The Denver Post, December 12, 2011
-
“Former Colo. student publisher reaches $425k settlement with prosecutor, ending Howling Pig legal marathon,” Student Press Law Center, December 12, 2011
-
“Colorado Officials Settle ‘Howling Pig’ Lawsuit,” Courthouse News Service, December 16, 2011
-
“Eight year Howling Pig litigation ends in $425K settlement,” Reporters Committee for Freedom of the Press, December 14, 2011
- "Tom Mink on $425K settlement in Howling Pig/ 'Junius Puke' case," Westword, December 13, 2011
-
“Prosecutor Coughs Up $425,000 for Violating Student's First Amendment Rights,” FIRE, December 13, 2011
-
“Court in First Amendment Case Overrules Prosecutorial Immunity,” Davisvanguard.org, December 14, 2011
-
“Junius Puke inspired bill to kill criminal libel, senator says,” Westword, February 14, 2012
-
“Offensive comments a crime in Colo., but for how long?,” 9 News, March 22, 2012
ACLU case number
2003-20