Eight year Howling Pig litigation ends in $425K settlement

Chris Healy | Libel | Feature | December 14, 2011

Students doctored a photo of a professor for a satirical magazine.

A lengthy legal battle that involved issues of freedom of speech, privacy, and the constitutionality of criminal libel laws has ended in a $425,000 settlement for the editor and writer of online satirical newspaper The Howling Pig, the American Civil Liberties Union of Colorado announced this week.

“This case reaffirms that satire, parody, and expressions of opinion are fully protected by the First Amendment,” said Mark Silverstein, ACLU Legal Director, in a press release. “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.”

The ACLU represented plaintiff Thomas Mink, who was a college senior in 2003 when police confiscated his computer and other electronic files after a university professor accused Mink of criminal libel. Mink, an English major, altered and published a photo of the professor for the satirical newspaper.

"It's done," said Mink, former editor of the now defunct Howling Pig. "It's been eight frickin' years."

According to Mink, what began as a case about the rights of publishers under the First and Fourth Amendment became a case about "what a horrible, awful prosecutor [Susan Knox] is."

Defendant Susan Knox was the assistant district attorney at that time who reviewed and approved the search warrant for Mink's computer and electronic files.

David Brougham, who represents Knox, expressed concern for what the case could mean for prosecutors. In an email, Brougham said that exposure to liability for approving a search warrant will create a "chilling effect . . . on [the] prosecutorial function."

The case arose out of a publication that Mink and several other students at the University of Northern Colorado started in response to budget cuts for the school's student newspaper. As a "mascot" for their satirical newspaper, the students photoshopped a picture of professor Junius Peake, renamed as editor-in-chief of the publication "Mr. Junius Puke." His picture was altered to resemble Gene Simmons, a member of the rock band Kiss.

In December 2003, Police seized Mink's computer and confiscated all of his electronic files, following a complaint from Peake. The police informed Mink that he would soon face a felony charge under Colorado's criminal libel statute.

The ACLU quickly asked a court to order the return of Mink's computer and prohibit any criminal libel charges from being filed against him. U.S. District Judge Lewis Babcock prevented Knox from prosecuting Mink in January 2004.

Mink then filed a civil lawsuit against the officers who conducted the search and Knox, the assistant prosecutor who approved the request for a search warrant. Mink soon reached a settlement with the officers, dismissing them from the suit, but the action against Knox only ended with the settlement reached Monday, according to the ACLU.

Over the course of the last eight years, the case has been appealed to the U.S. Court of Appeals in Denver (Tenth Circuit) three times. In 2007 that court ruled that Knox was not protected by the defense of "absolute immunity," and in 2010 the court also rejected Knox's claim of "qualified immunity." In June, Judge Babcock ruled in favor of Mink, holding Knox responsible for violating Mink's First and Fourth Amendment rights. Knox appealed, but Mink said that the parties began tentatively discussing settlement in August. Now that an agreement has been reached, the appeal will be withdrawn.

Mink says he wanted the settlement to be large enough make a point for other Colorado prosecutors. Of the $425,000 settlement, $25,000 will go to Mink and $400,000 will go towards Mink's attorney's fees and litigation costs.

Despite the settlement, Brougham maintains that Knox acted appropriately. "What is trumpeted here as a victory for free speech involves nothing more than a puerile and impertinent attack on a college professor. I still remain mystified as to how Ms. Knox violated any clearly established civil right of this plaintiff," he said.

Mink and the ACLU had hoped to have the criminal libel statute declared unconstitutional, but the court of appeals declined to address that issue because Mink was no longer being threatened with prosecution under the law. The law remains in effect in Colorado. Silverstein says that his organization would try again to have the law declared unconstitutional, if the right case arose. Even if the law is rarely enforced, prosecution under it is used as a threat to silence speakers, Silverstein said.

As a former prosecutor, Brougham believes that "the crime of criminal libel remains a viable tool for justice in certain cases in Colorado."

The Reporters Committee joined with other media organizations in friend-of-the-court briefs on behalf of Mink at both the trial and appellate levels.