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Thomas Mink and The Howling Pig: ACLU's illegal search case moves forward six years later

In December 2003, the Ault, Colorado home onetime UNC student Thomas Mink shared with his mom was raided by police. His crime? Satirizing a UNC professor named Junius Peake as "Junius Puke" in his self-published newsletter, The Howling Pig.

Thus began a court fight whose latest chapter ended yesterday with a court victory for Mink. If only the ACLU lawyer supporting him knew where the hell he was...

The basics of the dispute were laid out like so in "The Art of the Matter," a January 22, 2004 Message column:

On the Pig's home page..., a disclaimer differentiates Puke, who's seen wearing Gene Simmons makeup, from 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."

Maybe so, but he didn't like the rest of his portrayal, either -- and subsequently expressed 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.

Greeley cops seized Mink's computer as part of its investigation -- an action that immediately stoked the ire of the local ACLU branch, which took on his cause.

As recapped in the next week's Message column, the charges against Peake were soon dropped -- 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. The possibility of the legislature taking that on during this session has been raised and I think that may affect how we move forward with the suit on the constitutionality of the law. But either way, 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."

That turned out to be a mission impossible -- and the case itself has taken the legal team on quite a ride, as the ACLU's Mark Silverstein explains.

 

"When we first heard about the case, the search warrant had been served, the police had Tom's computer, and he'd been told that he would soon be charged with felony libel," Silverstein says. "We went to court and got a temporary restraining order that prohibited prosecution and got his computer back. We had hoped the case might be one where we could take on the criminal libel statute itself, but the district court judge dismissed that part of the lawsuit, and also threw out the charge against the assistant prosecutor," who had authorized the search warrant in the first place.

Silverstein notes that the Greeley Police Department was also named in the original lawsuit, but "quickly settled."

"The Howling Pig" logo.
"The Howling Pig" logo.

The lawyers appealed the decision regarding the criminal libel statute and the assistant prosecutor to the 10th Circuit Court. But, Silverstein continues, "the 10th Circuit said Mr. Mink wasn't threatened with prosecution anymore, so we could not seek a declaration that the statute itself violates the constitution." However, "the 10th Circuit rejected the district-court ruling that our damages claim against the assistant prosecutor had to be thrown out. The court said absolute immunity from prosecution doesn't apply when the prosecutor is acting in an investigative role -- and at the time the prosecutor approved the search warrant, there had been no decision made to pursue prosecution."

Thanks to this ruling, the case returned to district court, "which again dismissed the claim against the assistant prosecutor," Silverstein recounts. "But this time, it was on the grounds of qualified immunity. So we appealed that back to the 10th Circuit Court."

Another batch of oral arguments took place last September -- and yesterday, the 10th Circuit Court reached a conclusion Silverstein describes like so:

"The court said the search on the basis of the warrant application clearly violated Mr. Mink's rights under the First Amendment, as well as under the Fourth Amendment. And secondly, the court held that no reasonable prosecutor could have believed that Mr. Mink could be prosecuted for criminal libel based on the writings the prosecutor reviewed, which were clearly satire. No one could have believed these were reasonable assertions about the professor who said his reputation was damaged, so any reasonable prosecutor should have known it was protected expression."

What happens next? "The defendants have the option of asking the full 10th Circuit to rehear the case," Silverstein says. "And they have the option of asking the United States Supreme Court to review the case. But if neither of those things happen, there'll probably be a scheduling conference set up in district court. And now that the legal issues have now been resolved, we might be able to resolve the case without further litigation."

In addition, Silverstein hopes "prosecutors and police will stop threatening disfavored speakers with prosecuting them under the antiquated criminal libel statute," which he sees as overly broad, much too vague, and quite dangerous, since even truth isn't recognized as a defense in the case of "libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living."

Example? "If you were perhaps to publish an article suggesting that our revered president Thomas Jefferson had a mistress who was an African-American slave, some prosecutor might say you're harming the memory of the dead, even though historians believe that's what happened."

How does Mink feel about all this? Silverstein doesn't know. He's pretty sure there was some communication between him and the ACLU last September in advance of oral arguments. But as of earlier today, Mink hadn't responded to a call from Silverstein attempting to pass along the good news. "I'm not sure where he is," Silverstein concedes.

Once he gets the good word, he'll no doubt be smiling. Look below to read the ACLU's release about the case, complete with links to assorted court documents:

 

ACLU Wins Major Victory in Longstanding Defense of Student Journalist

DENVER -- Issuing a decision in a longstanding ACLU of Colorado case, the Tenth Circuit Court of Appeals ruled today that a Weld County assistant prosecutor can be held legally responsible for an illegal search of the home of Thomas Mink and the illegal seizure of his computer. The search was carried out pursuant to a warrant issued in late 2003 as part of a Greeley Police Department investigation of supposed "criminal libel" for Mink's role in publishing "The Howling Pig," an online publication featuring satiric commentary on issues of public concern to the University of Northern Colorado (UNC) community.

The investigation and the warrant were based solely on the first three issues of "The Howling Pig." The prosecutor, Susan Knox, reviewed the publications, the application for search warrant, and the draft of the warrant itself. Although Knox did not personally participate in the illegal search, the court held that her approval of the warrant application set the illegal search in motion.

"Today's decision is a major victory for the protection of free expression and the protection of the public from unreasonable searches and seizures," said Mark Silverstein, ACLU Legal Director. "The court held that our client's publication was clearly protected by the First Amendment and that no reasonable prosecutor could have believed otherwise. The court also held that no reasonable prosecutor could have believed that the search warrant--which authorized seizure of any and all papers in the home -- was specific enough to comply with the Fourth Amendment."

The ACLU filed the lawsuit in early 2004 and quickly obtained a restraining order forbidding the threatened "criminal libel" prosecution and securing the return of Mr. Mink's computer. The ACLU also sought an order declaring the "criminal libel" statute unconstitutional, but the Tenth Circuit, in a 2007 ruling, held that Mr. Mink could not challenge the statute because he was no longer threatened with prosecution. Today's ruling, on the case's second trip to the federal court of appeals, held that Ms. Knox is not entitled to invoke the defense of "qualified immunity."

In addition to Silverstein, Mink is represented by ACLU Cooperating Attorneys Marcy Glenn and Bruce Jones, of Holland & Hart.

More case information and court documents available online at:

http://www.aclu-co.org/docket/200320/200320_description.htm


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