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Appeals court upholds dismissal of criminal libel challenge

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NEWS MEDIA UPDATE   ·   TENTH CIRCUIT   ·   Libel   ·   April 18, 2007

NEWS MEDIA UPDATE   ·   TENTH CIRCUIT   ·   Libel   ·   April 18, 2007

Appeals court upholds dismissal of criminal libel challenge

  • A federal appeals court on Tuesday upheld the decision to dismiss a challenge to Colorado’s state law regarding criminal libel.

April 18, 2007  ·   A federal appeals court in Denver (10th Cir.) on Tuesday upheld the previous dismissal of a student editor’s challenge to the Colorado state criminal libel law.

Former University of North Colorado student Thomas Mink began publishing his online publication, The Howling Pig, in 2003 from the computer he shares with his mother at home.

The satirical newsletter featured a column appearing under the fictitious byline “Junius Puke,” a character believed to be a spoof on business professor Junius Peake.

After viewing the online newsletter, Peake complained to police and a local district attorney, claiming that he was a victim of criminal libel. Police started an investigation, which resulted in a search of Mink’s house and a seizure of his computer.

After the search, Mink believed that he would be prosecuted on grounds of libel and as a result, filed a lawsuit in 2004 requesting that Colorado’s criminal libel law be ruled unconstitutional.

The appeals court never decided whether Colorado’s law is constitutional. Instead, the court upheld a lower court’s ruling that Mink had no legal standing to sue and that his claims were moot. The court noted that no charges were ever filed and that the district attorney had declared he had no intention of prosecuting Mink.

Media organizations, including The Reporters Committee for Freedom of the Press, filed friend-of-the-court briefs urging the appeals court to address the merits of the constitutional libel challenge.

“We’re disappointed that the court didn’t do so and concluded that it lacked jurisdiction to address the merits,” said Steve Zansberg, an attorney who represented many of the media parties.

However, the appeals court also reversed the lower court’s decision regarding Susan Knox, a prosecutor who reviewed the search warrant to seize Mink’s computer. The trial judge said Mink could not sue Knox for damages because as a prosecutor, Knox was immune from lawsuits related to her conduct.

The appeals court disagreed, stating that she did not have absolute immunity in this case. The court sent the case back the trial court to determine if Knox was entitled to qualified immunity, which protects public officials from some lawsuits.

(Mink v. Suthers, Media Counsel: A. Bruce Jones, Holland & Hart LLP, Denver, Amicus Counsel: Thomas B. Kelley and Steven D. Zansberg, Faegre & Benson LLP, Denver)AG

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