Colorado's state judiciary committee took the first step this week in repealing a decades-old statute that criminalizes libel.
The bill passed with a 6-0 vote — with one voting member absent — on Tuesday, and is expected to go before the full Senate later this week.
“If you say civil libel law has a chilling effect, a criminal libel law might have a freezing effect,” said David Hudson, a scholar at the First Amendment Center and adjunct law professor at Vanderbilt University.
Under current Colorado law, “a person who shall knowingly publish or disseminate … any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.”
The proposed legislation – sponsored by Republican Sen. Greg Brophy – would effectively end the criminalization of libel statute in the state. A number of states still have criminalize libel statutes on their books, although they are rarely used.
While prosecutions under the state's criminal libel law may be few and far between, seven charges were brought within the last two years, with each defendant facing a felony charge and up to 18 months in prison with a possible $100,000 fine.
Opponents referred to the law as “archaic,” calling its repeal “long overdue.”
This move to eliminate the state's libel statute stemmed from a case involving a satirical online student publication at the University of Northern Colorado.
The publication, started by Thomas Mink and other students in 2003 after budget cuts took away funding from the school's newspaper, published an altered picture of a university professor, Junius Peake, portrayed as Gene Simmons from the rock band Kiss. The Howling Pig labeled him a "mascot" renaming their editor-in-chief "Mr. Junius Puke."
After a criminal complaint from Peake in December 2003, police seized Mink's computer and informed him he would soon face criminal libel charges. But the American Civil Liberties Union intervened and U.S. District Judge Lewis Babcock prevented Susan Knox, then an assistant district attorney, from prosecuting Mink in January 2004. Mink filed a civil lawsuit against the officers who searched his home and Knox, who ordered the search.
For eight years the case between Mink and Knox weaved in and out of Colorado courts – reaching the U.S. District Court of Appeals (Tenth Circuit) three times – before it finally settled out of court in December.
The ACLU fought to have the statute deemed unconstitutional, but the claim was rendered moot because criminal charges against Mink were dropped, said Denise Maes, the director of public policy for the Colorado chapter of the ACLU. An ACLU representative testified before the senate committee yesterday in favor of repealing the law.
But Mink's case did shed light on the criminal libel statute, Maes said, ultimately inspiring Sen. Brophy to introduce legislation to repeal the law.
Over the years many states have repealed their criminal libel laws. Most recently, Washington state's law was repealed in 2009 after a state Court of Appeals ruled the law unconstitutional. Under U.S. Supreme Court precedent, criminal libel laws survive constitutional scrutiny only if the statements are proven to be false and made with actual malice.
But laws in each state differ.
In 1991, the Colorado Supreme Court upheld the criminal libel statute when it ruled actual malice need not be proven in cases involving private individuals. While truth may be the absolute defense in some cases, in Colorado it is not.
"Repeal of the statute won't create any earth shattering events, but none the less I think it is hard to know what chilling effect on speech it has had, because people aren't saying the things they otherwise would," Maes said.
The ACLU is working to find a co-sponsor of the bill in the Colorado House of Representatives.