From the Summer 2011 issue of The News Media & The Law, page 34.
Thomas Mink never thought he’d become notorious for the project he came up with as a 24-year-old student who was riled up about conservative politics. But today, his lengthy court battle epitomizes issues with criminal libel laws and unreasonable searches of journalists.
In 2004, Mink and his friends at the University of Northern Colorado got together for drinks one night and talked about their annoyance with Republicans at the national, state and university levels. With the student newspaper’s funding cut for a year, they came up with an idea: create their own online publication. They called it The Howling Pig.
For fun, the group decided to use Junius Peake, a professor at the school, as the publication’s “mascot.” It listed him as editor-in-chief of the publication under the name “Mr. Junius Puke,” and showed a picture of him altered to look like Gene Simmons, the lead singer of the rock group KISS.
“Apparently this guy was awful to be around and we thought, ‘let’s just kind of mock him up a little bit, get out the Photoshop, we’ll make him our mascot,” Mink, now 32, said in a recent interview. “We all got together, drank and did a couple of issues — all pretty raunchy.”
Mink said he believed the publication was harmless satire, but when Peake found out, he had a different interpretation: He considered it criminal libel.
Mink didn’t know a criminal libel law existed in his state. But he quickly became aware when three Greely, Colo., police officers showed up at his house one night with a search warrant, seized the computer he shared with his mother and threatened to charge him.
A civil claim stemming from the incident has been in the court system for nearly eight years with another appeal in sight. It has brought to light the issues of state criminal libel laws that still exist, while the majority have been repealed or struck down as unconstitutional. Thirteen states still have some form of criminalization of libel on the books, though only three — Colorado, Wisconsin, and Kansas — have prosecuted under those laws in recent years.
The Howling Pig incident raises an additional, and perhaps even more prevailing, problem: Authorities continue to illegally search or seize material from journalists due to a lack of understanding or knowledge that they need a subpoena under federal law.
An eight-year battle
Represented by the American Civil Liberties Union, Mink filed a lawsuit in 2004 and was successful in obtaining a protective order against criminal libel charges in addition to the return of his computer. The civil suit sought to find the Colorado criminal libel statute unconstitutional under the First and Fourteenth Amendments. Mink was never charged criminally.
Mink sued the state attorney, the district attorney and the deputy district attorney for violating his rights of privacy and free speech, and his Fourth Amendment right against unreasonable searches and seizures.
Susan Knox, the deputy district attorney who approved the search warrant of Mink’s home based on the professor’s complaint, is at the center of the ongoing case, Mink v. Knox.
Mink and the ACLU sued Knox for damages in a U.S. District Court, but Knox initially succeeded in having the complaint dismissed because she was a government official acting in her official capacity. However, on appeal, the U.S. Court of Appeals in Denver (10th Cir.) sided with Mink and sent the case back to the District Court in 2007.
The District Court dismissed Mink’s claim a second time, ruling that Knox had shown that she was still immune from suit. Mink appealed and received another favorable ruling from the appellate court in July 2010, which sent the case back to the District Court yet again.
After these two appellate rulings, Knox could no longer rely on an immunity defense. On June 3, the trial judge ruled the Colorado prosecutor violated Mink’s constitutional rights when she approved the search warrant because she should have known The Howling Pig constituted satire protected by the First Amendment.
“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,” U.S. District Judge Lewis T. Babcock said.
The case is heading to the 10th Circuit for a third time. Knox filed an interlocutory appeal from the District Court’s summary judgement in Mink’s favor. The case has been referred to the Circuit Mediation Office, where it is currently pending, Knox’s lawyers said.
Criminal libel laws “facially unconstitutional”
The basis for the search warrant on Mink’s home was a criminal libel statute in Colorado that makes it a crime to knowingly publish or disseminate “any statement or object 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, and thereby to expose him to public hatred, contempt, or ridicule.”
First Amendment advocates say the criminal libel law, variants of which still exist in a handful of states, is facially unconstitutional because it broadly bans an entire category of speech and ignores safe zones provided by the First Amendment.
Mink said he and his lawyers hoped his lawsuit would result in a federal judge deeming the law unconstitutional and striking it from the books.
“This is a law that isn’t actually going to be charged to someone, it is used to threaten someone,” Mink said.
However, the Tenth Circuit has refused so far to make a decision on the constitutionality of the law, saying the issue is moot.
Steven Zansberg, a media law attorney with the Denver office of Levine Sullivan Koch & Schulz, wrote friend-of-the-court briefs at the trial and appellate courts on behalf of several media organizations, including the Reporters Committee for Freedom of the Press, urging the courts to find the law unconstitutional on First Amendment grounds.
Zansberg said he is pleased with the recent decision finding that the prosecutor violated Mink’s constitutional rights. However, he said that by refusing to strike the criminal law statute from the books, the court fails to fully solve the underlying issue.
“The problem is that the statute is facially unconstitutional; as long as it remains on the books, other prosecutors may also misinterpret it and subject others to the type of treatment Mink received,” he said.
Thirty-one states have repealed their criminal libel laws, struck them down as unconstitutional or never had such statutes. Five others recognize criminal libel under common law but do not prosecute these cases after the 1966 U.S. Supreme Court case, Ashton v. Kentucky, found laws of this nature to be unconstitutional.
Utah is a unique case. In 2002, the Utah Supreme Court — noting the law “infringes upon a substantial amount of constitutionally protected speech” — unanimously ruled that the state’s criminal libel statute was overbroad and unconstitutional.
The decision came after a high school student was charged with criminal libel after creating a website that had parodic remarks about other students, teachers and his high school principal.
However, the court did not address a separate criminal defamation statute, which remains on the books, but is arguably also unconstitutional under the state Supreme Court’s standards.
In all, there are 13 states with criminal libel on the books. However, 10 of these do not prosecute under the law: Florida, Idaho, Michigan, Minnesota, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma and Virginia.
Colorado, where the Howling Pig case took place, Kansas and Wisconsin have all prosecuted under their criminal libel statutes in recent years.
In the states where criminal libel laws are still enforced, there is room for prosecutors such as Knox or police officers to misunderstand their limits and to infringe on the public’s First Amendment rights, Zansberg said.
Need for more education
Lee Levine, a partner at Levine Sullivan Koch & Schulz in Washington, D.C., said The Howling Pig case highlights the unconstitutionality of criminal libel laws, but it also raises a more serious, national issue of unlawful searches against journalists.
Levine said more needs to be done to educate authorities about the law. Contrary to many authorities’ understanding, federal law requires officials to obtain a subpoena — not simply a search warrant — in order to gather evidence from a newsroom. The Privacy Protection Act of 1980 makes it “unlawful for a government officer or employee . . . to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication.”
“The larger significance of this whole episode is that it remains disturbingly clear that prosecutors and law enforcement officials don’t know it is unlawful to search a newsroom or journalist,” Levine said.
There have been several cases across the country where officials unlawfully searched newsrooms either because they were ignorant of the laws or because they chose to ignore them.
Levine noted one case in particular at James Madison University in Harrisonburg, Va., in April 2010 where officials executed a search warrant on the student newspaper’s newsroom and confiscated hundreds of photographs the editor-in-chief refused to hand over.
The photographs, taken by student photographers at The Breeze, were of a campus block party during which property was damaged, attendees and authorities were injured, and more than 30 attendees were arrested.
After Editor-in-Chief Katie Thisdell refused to give the pictures to local prosecutor Marsha Garst, authorities searched the newsroom, took 926 photos and threatened to confiscate computers.
The case took months to resolve, but on May 31, 2010, the students reached a settlement with Garst that included turning over to authorities 20 photos that held information unavailable from another source, with the rest returned to the newsroom.
The settlement also required Garst to pay $10,000 to The Breeze for legal fees and required her to apologize to the staff. She also promised to only use subpoenas to obtain evidence from a newsroom in the future.
Levine said it was clear the prosecutor didn’t know about the Privacy Protection Act’s requirement, and more should be done to educate authorities about the laws concerning searches of journalists.
Moreover, a recent Pennsylvania case indicates the problem may extend to the judiciary as well. Senior District Judge Andrew Barilla in Wilkes-Barre authorized a search warrant on local TV station WNEP that authorities attempted to carry out in search of unedited, unaired video footage of a fatal house fire, according to The (Wilkes-Barre) Times Leader.
When WNEP employees turned officers away, Judge Tina Polachek Gartley ordered the station to hand over the video footage.
However, WNEP challenged the order, arguing the footage is protected under the state’s shield law, and the judge rescinded her order on June 3.
Despite the reversal, The Times Leader reported Polachek Gartley questioned WNEP’s “authority” to refuse a search after a judge signed a valid warrant. There was no mention of authorities’ need for a subpoena.
Levine noted the importance of educating officials about the illegality of journalist searches.
“Ignorance is no defense in these cases, but we don’t want these happening in the first place,” Levine said.
The fight continues
Nearly eight years later, Mink and his lawyers are still fighting. Mink said he’s unsure what Knox plans to accomplish by appealing to the Tenth Circuit for a third time, but he hopes it may give the court another chance to get rid of the Colorado criminal libel law.
Mink believes that, if Knox argues she acted reasonably based on the existing Colorado statute, the court may agree to evaluate the law.
Mink said he hears about journalists — students in particular — who continue to be subject to unlawful searches.
“All of the established safe zones in the First Amendment don’t apply as the [criminal libel] statute is written,” he said. “I’m hoping since we’re at the point now, that there is still a possibility to get rid of it.”