Case No. 04-B-0023 (CBS), United States District Court, District of Colorado; No. 04-1496, Tenth Circuit Court of Appeals
ACLU Case No. 2003-20
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 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, the Greeley Police Department appeared at Mr. Mink's home with a search warrant, announced that they were investigating a felony charge of "criminal libel," and confiscated Mr. Mink's computer and all electronically-stored files and data. The police had earlier obtained a court order mandating that Yahoo provide all emails to and from the web site of The Howling Pig.
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.
The lawsuit seeks a declaratory judgment that Colorado's criminal libel statute is unconstitutional. It further asserts that the seizure of Mr. Mink's computer violated the Fourth Amendment and the Privacy Protection Act of 1980, and that the seizure of emails from Yahoo violated the Electronic Communications Privacy Act.
In October, 2004, the Court ruled that the Plaintiffs did not have standing to challenge the constitutionality of the criminal libel statute. The Court dismissed all claims, and Plaintiffs 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 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.
In 2010, the Tenth Circuit ruled that the prosecutor was not entitled to absolute immunity. In June 2011, Judge Babcock granted Tom Mink's motion for summary judgment. The prosecutor appealed, and a settlement in late 2011 mooted the appeal and ended the case.
Mark Silverstein , ACLU of Colorado Legal Director
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