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ACLU Names Colorado Attorney General as Defendant in Challenge to Criminal Libel Statute and Settles Claims Against City of Greeley

February 19, 2004

The American Civil Liberties Union Foundation of Colorado (ACLU) announced today that it has added Colorado Attorney General Ken Salazar, the state’s chief legal officer, as a defendant in a lawsuit filed last month that asks a federal court to declare Colorado’s criminal libel statute unconstitutional. The ACLU also announced that it was dropping the City of Greeley and its detective from the suit, pursuant to a settlement agreement.

The suit was filed last month on behalf of University of Northern Colorado student Thomas Mink, who was threatened with a felony prosecution under the criminal libel statute for his role in producing a satiric Internet publication, The Howling Pig. In connection with the investigation, a Greeley detective obtained a search warrant for Mr. Mink’s home and seized the computer owned by Mr. Mink and his mother, Crystal Mink. On January 9, the day after the suit was filed, Judge Lewis Babcock of the United States District Court issued a temporary restraining order forbidding the Weld County prosecutor’s office from filing the threatened charge of criminal libel. The court also ordered the immediate return of the Minks’ computer. At a status conference on January 20, Judge Babcock determined that the temporary restraining order was no longer necessary, after the Weld County prosecutor’s office announced that it would not charge Mr. Mink with a crime for any material in the first three issues of The Howling Pig.

According to the ACLU, the criminal libel statute is an antiquated relic that was superseded long ago by developments in the law regarding the First Amendment right of free expression. The 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.”

“This unconstitutional criminal statute is violated every day in Colorado,” said Bruce Jones, of Holland & Hart, an ACLU cooperating attorney. “Most police and prosecutors have the good sense to ignore it. Yet it remains on the books as a potential threat to the right of free expression.”

“In this case, police and prosecutors in Greeley relied on this unconstitutional statute to obtain a search warrant to seize the Minks’ computer,” Jones continued. “The same thing could happen next week or next month anywhere else in Colorado. For that reason, we have named Colorado’s chief legal officer as a defendant, and we are asking the court for a ruling that will have state-wide effect and put this unconstitutional statute to rest, once and for all.”

According to the ACLU’s amended complaint, the criminal libel statute has been invoked several times in recent years to threaten or stifle expression that is protected by the Constitution. During a political campaign in 2002, a political opponent of the then-Mayor of Georgetown filed a complaint of criminal libel against the Mayor for statements on the Mayor’s web site. In 2000, a special prosecutor was appointed in Boulder to investigate allegations of criminal libel made against the Boulder Daily Camera and the Rocky Mountain News. And in 1998, the ACLU defended a middle school student charged with criminal libel in connection with a publication that satirized school authorities.

“When we think of the countries that put people in prison for what they write, most people don’t think of the United States,” said Mark Silverstein, ACLU Legal Director. “Yet the criminal libel statute remains on the books, authorizing several years in prison for publishing statements that are protected by the First Amendment.”

In the amended complaint, the ACLU has dropped all claims against the City of Greeley and Ken Warren, the Greeley detective who searched the Minks’ home and seized the Minks’ computer. “The City of Greeley has agreed to compensate Crystal Mink and will pay a portion of the ACLU’s attorney’s fees incurred in obtaining the temporary restraining order,” Silverstein explained. “Thomas Mink will continue to prosecute his claims for damages against the assistant district attorney who approved the unconstitutional search of his home and the unconstitutional seizure of his computer.”

Before searching the Minks’ home last December, the investigators obtained a court order requiring Yahoo to provide all records pertaining to the web site of The Howling Pig, including emails sent by readers to the site and emails sent from the site. The amended complaint asserts that the interception of the email communications violates the Electronic Communications Privacy Act and seeks damages for Mr. Mink from Deputy District Attorney Susan Knox, who approved the court order for Yahoo’s records. The amended complaint also alleges that Ms. Knox violated Mr. Mink’s rights under the Fourth Amendment and the Privacy Protection Act of 1980 by approving the request to search and seize Mr. Mink’s computer.

In addition to Jones and Silverstein, Mink’s lawyers include Marcy Glenn, also at Holland & Hart.

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