The American Civil Liberties Union of Colorado (ACLU) filed suit today in federal district court seeking 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, which is preserved at the Internet Archive, began publishing in the fall of 2003. After three issues, the lawsuit says, 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. Police were acting on a complaint filed by Junius Peake, a well-known UNC professor who is spoofed in Mr. Mink’s publication.
Colorado’s rarely-used criminal libel statute makes it a crime 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.
According to the ACLU, a criminal prosecution under Colorado’s criminal libel statute violates the right of free expression and freedom of the press. “The Howling Pig consists of satire, parody, opinion, and other expression that is fully protected by the Constitution,” said Bruce Jones, of Holland & Hart, an ACLU cooperating attorney who filed the lawsuit. “Colorado’s criminal libel statute should not and can not convert constitutionally-protected expression into a jailable offense.”
“This case illustrates the danger of permitting overbroad unconstitutional statutes to remain on the books,” said Marcy Glenn, a Holland & Hart attorney who is co-counsel for the ACLU. “Police relied on this unconstitutional statute to search Mr. Mink’s home and cart off his computer and all his files on the ground that they provide ‘evidence’ of crime.”
“There is no legitimate place for a criminal libel statute in a free society,” said Mark Silverstein, ACLU legal director. “Civil lawsuits provide an adequate remedy for defamation. No one should be threatened with jail for what they write or publish.”
The ACLU is asking for a declaratory judgment that the criminal libel statute is unconstitutional and an emergency order blocking prosecution. The lawsuit also alleges that the search and seizure violates the Fourth Amendment and seeks the immediate return of Mr. Mink’s computer and files.
Defendants in the lawsuit are Weld County District Attorney A.J. Dominguez, Jr., the City of Greeley, and Detective Ken Warren of the Greeley Police Department. The lawsuit also names John Doe #1, who is identified as the unknown assistant district attorney who reviewed the application and approved the application for search warrant.