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Eight years later, “The Howling Pig” free speech case reaches settlement

On behalf of a satiric internet publication, The Howling Pig, and its publisher Tom Mink, the ACLU of Colorado announced today that after three trips to the Tenth Circuit Court of Appeals, a $425,000 settlement finally ends a marathon legal battle over free speech that began on this date eight years ago, when Greeley and Weld County authorities showed up at Mink’s home with a warrant to search for evidence of “criminal libel.”

Police carted off Mink’s computer, confiscated all of his electronic files, and warned that the Weld County district attorney would soon file felony charges for Mink’s humorous commentary on issues of concern to the Northern Colorado community.

“This case reaffirms that satire, parody, and expressions of opinion are fully protected by the First Amendment,” said Mark Silverstein, ACLU Legal Director. “Prosecutors and police cannot use Colorado’s antiquated 19th-century criminal libel statute to intimidate, threaten, or silence speakers who criticize public officials and spoof community leaders.”

ACLU lawyers argued that the search and the threatened prosecution violated Mink’s right of free expression and his right to be free of unreasonable searches and seizures. In January, 2004, Judge Lewis Babcock granted the ACLU’s request for an emergency injunction. He ordered the return of Mink’s computer and prohibited the district attorney from filing the threatened criminal charges.
Soon afterwards, Mink and Greeley reached a settlement, and the city and its detective (who served the search warrant) were dismissed as defendants. The Howling Pig resumed publication, while the legal case continued against the assistant prosecutor, Susan Knox, who had reviewed and approved the request for the search warrant.

In 2007, the Tenth Circuit ruled that the prosecutor was not entitled to a defense of “absolute immunity.” A second trip to the court of appeals produced a ruling in 2010 denying the prosecutor’s bid for “qualified immunity.” Last June, Judge Babcock finally issued a ruling granting summary judgment to Tom Mink and holding the prosecutor legally responsible for violating Mink’s First and Fourth Amendment rights. The case moved to the Tenth Circuit for a third time when the prosecutor filed an appeal, which is now mooted by the settlement announced today.

“Judge Babcock’s order granting summary judgment has major legal significance,” Silverstein said. “It may be the first written ruling that expressly holds a prosecutor legally responsible for her role in approving an application for a search warrant that resulted in an illegal search. This ruling, and this substantial monetary settlement, sends a forceful message that prosecutors cannot simply rubber-stamp a police officer’s request to invade the privacy of a person’s home. Prosecutors must carefully review requests for search warrants. This is especially true, as in this case, when the search seeks evidence of how someone exercised his or her right of free expression.”

Colorado’s 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.” The ACLU argues that the criminal libel statute is an overly vague and archaic relic that was superseded long ago by case law interpreting the First Amendment right of free expression. Similar statutes in numerous other states have been declared unconstitutional and unenforceable.

“We cited multiple constitutional problems with Colorado’s statute and asked the courts to declare it unconstitutional,” said Marcy Glenn, of Holland and Hart, who litigated the case as an ACLU Cooperating Attorney. “Unfortunately, the Tenth Circuit ruled in 2007 that Tom Mink was no longer threatened with prosecution and therefore it would not declare the statute unconstitutional. The court’s subsequent ruling in 2010, however, clearly held that the criminal libel statute could not serve as a basis for punishing any of the constitutionally-protected expression in the first three issues of The Howling Pig, which were attached to the application for search warrant.”

In addition to Silverstein and Glenn, Mink was also represented by A. Bruce Jones, who worked as an ACLU Cooperating Attorney on this case until he was appointed to the Denver District Court in late 2010.

For more information on this case, click here.

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