In 2003, Greeley Police officers arrived at the home that then-UNC student Tom Mink shared with his mom, confiscating his computer and more because of complaints about his portrayal of professor Junius Peake as "Junius Puke" in his fledgling Internet publication, The Howling Pig.
Eight years and a six-figure lawsuit settlement later, Senator Greg Brophy is sponsoring a bill to eliminate from state law the criminal-libel statute used against Mink -- and he says the Greeley case inspired his efforts.
"I thought we lived in a country where we had free speech," says Brophy, whose measure is scheduled to be heard by the Senate judiciary committee this morning. "I understand that if you say something about somebody that harms them, they have the right to sue for damages in civil court. But I didn't think the heavy hand of government could come in and throw you in prison for something you'd written. And I think that's dangerous."
Use of the criminal-libel law, which ACLU of Colorado legal director Mark Silverstein has called a "relic of the nineteenth century," is rare. Yet its continued existence on the Colorado books "begs for the argument of unequal application of the law," Brophy believes. "So this kid in Greeley gets a charge against him for something he did, but somebody in another town doesn't. That's not supposed to happen. If you commit a crime, it's serious, and you should be prosecuted for it."
Moreover, he goes on, "This is a felony. We're not talking about speeding here. This is treated as a Class 6 felony, which means if you're guilty, you go to prison."
This is the very situation that faced Mink, as we noted in a July 2010 update about the case, which Westword first covered in the January 22, 2004, Message column "The Art of the Matter." Here's how that piece laid out the basics:
On the Pig's home page..., a disclaimer differentiates Puke, who's seen wearing Gene Simmons makeup, from [Junius] Peake, the 72-year-old Monfort Distinguished Professor of Finance at UNC's Monfort College of Business, and a nationally recognized expert on microstructure; he's appeared on National Public Radio and other major news organs. Nonetheless, a second picture of Puke that, like the first, is a doctored rendering of a Peake glossy, shows him sporting a tiny mustache that the professor interpreted as a nod to Adolf Hitler when he saw a copy of the Pig at UNC last fall. "How would you like it if someone sent out a newsletter likening you to Hitler?" he asks. "I lived through the Hitler era. I had friends who died then. To me, that was the worst thing."
The rest of the portrayal frosted Peake, too, prompting him to express his frustration to the Weld County District Attorney's Office. The article continues:
Peake says DA representatives then brought in the cops under Colorado's criminal-libel statute, a law declaring that published statements "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" may be considered a felony. Conviction carries a possible two years in the pokey and a $100,000 fine.
At that point, the ACLU's Silverstein told us during an earlier interview, "a search warrant was obtained to search Tom Mink's home for evidence of the felony of criminal libel. Police had a warrant to authorize them to basically take any writings in the house, whether in paper or electronic form, then carted off his computer and all his electronic files, including articles in progress for the next issue."
As documented in the next week's Message column, the charges against Mink were dropped soon after he reached out to the ACLU -- but the case lived on as a way to attack Colorado's criminal-libel statute. As Mink wrote in an e-mail at the time, "I think the thing should be taken off the books one way or another.... I hope to do what I can to get rid of such an antiquated, piece-of-crap law that can be used so easily to stifle free speech."
The effort to accomplish this goal stretched on through the rest of that decade and into this one. But finally, last December, the Weld County District Attorney's Office (the only party to the ACLU lawsuit filed on Mink's behalf that hadn't already surrendered) finally raised the white flag, agreeing to pony up $425,000. Most of that sum went to the ACLU, with Mink getting $25,000 -- enough to buy a new car that would help the then-unemployed Greeley resident find a job.
Mink, though, had always been more interested in nixing the criminal-libel law than scoring a big payday, and Brophy subsequently decided to champion the cause -- one that he sees as especially timely in this age of social media.
"Everybody has a blog and a Facebook page," he notes. "And I'm not going to make excuses for you if you say something stupid that really does cause somebody harm. You can be sued in civil court and be held accountable. But should the government use taxpayer dollars to prosecute you for a Facebook posting? I don't think so.
"I know the line is overused, but that's a chilling effect on free speech. Imagine if you're buddies with the DA and you're going through a testy divorce and your spouse posts something about you on Facebook -- and you get your pal to file criminal charges against her. That could happen."
Maybe not for much longer. Brophy is confident about the odds of success for his measure, in part because representatives of both the ACLU and the office of Colorado Attorney General John Suthers are planning to testify in favor of it. "So far, no one has come and told me they're opposed," Brophy says.
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Of course, Junius Puke hasn't weighed in yet. But since he's a fictional character, he probably won't show up.
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