Federal court finds prosecutor violated blogger's civil rights

Aaron Mackey | Libel | Feature | June 3, 2011

A Colorado prosecutor violated a student blogger’s constitutional rights when she approved a search warrant of his mother's home over a criminal libel allegation, a federal judge ruled on Friday.

U.S. District Judge Lewis T. Babcock ruled that Weld County Prosecutor Susan Knox violated Thomas Mink’s Fourth Amendment rights in 2003 while investigating a series of satirical postings made in an online publication. A university professor claimed that he had been libeled by Mink's writings.

The investigation into Mink began after he created a website known as The Howling Pig, which included an altered image of a University of Northern Colorado professor alongside several comments.

The professor, believing the website’s content was defamatory, contacted local police, who began a criminal libel investigation. Police put together a warrant to search Mink’s mother’s house, where Mink lived. Knox later reviewed and approved the warrant for submission to a judge.

After the warrant was issued, police searched Mink’s mother’s house and seized the personal computer that they shared.

Dismissing Knox’s claim that she was not liable because she is a government official, the court held that, because Mink’s activities constituted satire protected by the First Amendment, the attorney could not have believed that the articles stated actual facts about the professor or that a crime had been committed.

“Mr. Mink has established that Ms. Knox’s alleged conduct violated his Fourth Amendment rights because there was no probable cause to believe that he had committed criminal libel,” Babcock said.

Colorado law allows for the prosecution of individuals who knowingly publish material that impeaches “the honesty, integrity, virtue, or reputation or expose the natural defect of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule.”

The court’s ruling was a victory for free speech, but the court also should have struck down the state’s criminal libel law, said Steve Zansberg, a media law attorney with the Denver office of Levine Sullivan Koch & Schulz LLP.

Zansberg represented a number of media organizations, including the Reporters Committee for Freedom of the Press, in the case, writing friend-of-the-court briefs at the trial and appellate courts that asked that the law be found unconstitutional in light of the First Amendment.

“The fact that there’s still any question for a prosecutor dealing with free speech issues shows again why the statute should be stricken from the books,” he said. “In our view, no speech of any kind should be subject to prosecution based on a statute that is facially unconstitutional.”

The court’s ruling chided Knox for not doing more to determine the nature and content of Mink’s website before approving the warrant.

The description of the website’s content in the search warrant “should have alerted Ms. Knox to the fact that (the website) might constitute satire protected by the First Amendment and that she should review the actual content of the website as set forth in the attachment even if she was otherwise inexplicably not inclined to do so.”

In affirming that Mink’s rights were violated, the district court brings to a close a case that has bounced around multiple courts for several years. The district court initially tossed out Mink’s civil rights claim on the ground that Knox was completely immune from suit because she was a government official acting in her official capacity.

Mink appealed to the U.S. Court of Appeals in Denver (10th Cir.) and won, sending the case back to the district court. The district court then dismissed the claim a second time, ruling that Knox had shown that she was still immune from suit.

Mink appealed again and received another favorable ruling from the appellate court, which sent the case back to the district court once more.