Update: Yesterday marked exactly eight years since officers in Greeley arrived at the home that then-UNC student Tom Mink shared with his mom, confiscating his computer and more because of complaints about the way he'd portrayed a professor in his fledgling Internet publication, The Howling Pig. And it also corresponded with news that the complaint over this violation of Mink's rights had finally been settled in his favor, to the tune of $425,000. Not that the currently out-of-work plaintiff is suddenly rich.
According to Mink, who still lives in the Greeley area, the vast majority of the total will be going to assorted ACLU lawyers who kept the case alive for the better part of a decade. His share is $25,000 -- a figure arrived at by trying to calculate his losses from the police and prosecutorial action against him. During the negotiations, "they were like, 'Did you have any hospital bills? Psychiatrist bills?' And I said, 'No, but I probably had quite a few bar tabs.' So the amount's pretty fair."
Moreover, he's already got the sum earmarked for an important purchase. "I'm buying a car," he says, "because my engine blew up."
Mink never would have guessed the case would have dragged out for so long. "I remember talking with Mark" -- Mark Silverstein, the ACLU of Colorado's legal director -- "and he said, 'Well, these sorts of things usually work out in a month or so.' But then it kept going and going and going. I think somebody let slip that this was actually the longest-running case still on the Colorado ACLU's docket. When I heard that, I thought, 'Oh, crap.'"
In the beginning, Mink's main goal was to get rid of the Colorado criminal libel statute, "but that fell by the wayside a few years ago," he notes. "The court said I didn't have standing on the First Amendment part of the case. And the Weld County DA's office said, 'Of course we would never have charged anybody under this terribly antiquated law -- but it absolutely still needs to be there.'"
He feels otherwise. "It's very hard to litigate, because they don't usually charge people with it -- they threaten to charge people with it, and they investigate people on it, and they serve search warrants and basically scare the shit out of you. It's just obnoxious intimidation, which they unfortunately tend to use on loudmouth, obnoxious high school and college kids."
He happily cops to having fallen into the latter category. When he looks back at The Howling Pig, he sees the occasional clever turn of phrase, and he enjoys thinking about the times he shared with buddies putting it together -- but he laughingly admits that a lot of it sucks.
Be that as it may, he believes strongly that the satiric content aimed at Professor Junius Peake, portrayed as "Junius Puke," was constitutionally protected speech, and he remains upset at the way the case was handled. "I was looking at a year in jail and up to a $100,000 fine or something like that. And in retrospect, probably no DA was dumb enough to actually file charges and take this kind of thing to court. But they probably would have dragged their feet for six months and then given me my computer back in pieces and said, 'Go on your way -- but first erase your website.'"
Instead, he's now got the means to get himself back on the road -- something that he hopes will help him in his present circumstances.
"Most recently, I was in AmeriCorps VISTA, but I'm sort of between things now," he says. "I've been looking for stuff within walking distance of West Greeley and been doing some freelance writing online, like every other single, unemployed person with a college degree."
What a difference eight years make. Look below for our earlier coverage.
Original item, 12:35 p.m. December 12: Back in December 2003, the Ault-Colorado home onetime UNC student Thomas Mink shared with his mom was raided by police -- because he'd satirized a UNC professor named Junius Peake as "Junius Puke" in his self-published newsletter, The Howling Pig.
Ridiculous? Perhaps. But definitely expensive. Because after a nearly eight year legal battle, the case has been settled in Mink's favor to the tune of $425,000.
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.
ACLU of Colorado legal director Mark Silverstein picks up the tale from there.
"A search warrant was obtained to search Tom Mink's home for evidence of the felony of criminal libel," he notes. "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. 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."
Page down to read more about criminal libel and the settlement. According to Silverstein, Colorado's criminal libel statute is "probably a relic of the 19th century. Most states have now abandoned their old criminal libel statutes, either through a legislative appeal or having the courts declare them unconstitutional -- but Colorado's remains on the books. So we alleged that the search and seizure of Tom's computer violated both the First and Fourth Amendments, with prosecution under the criminal libel statute violating the First Amendment."
At first, the case moved quickly. "We sought declaratory and injunctive relief from the threatened prosecution and also made claims for damages against the prosecutor who had a hand in approving the search warrant and the police officer who served the search warrant," Silverstein recalls. In response, Judge Lewis Babcock issued an emergency injunction ordering the return of Mink's computer and prohibiting the Weld County DA's office from charging him with criminal libel based on the first three issues of The Howling Pig, which had been attached to the application for a search warrant.
Shortly thereafter, the City of Greeley and the officer named in the claim settled the case -- "but the prosecutor's office and the assistant prosecutor did not settle," he allows. "And that turned into an eight-year legal battle with three trips to the 10th Circuit Court."
Last summer, after much back and forth, Babcock granted an ACLU motion for summary judgment against the assistant prosecutor -- a potential precedent, since, as Silverstein points out, "it may be one of the only, if not the only, written judicial opinion that holds a prosecutor legally responsible for approving a search warrant application that ultimately results in an illegal search."
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Despite this seemingly definitive ruling, the case still refused to die. Now, however, the DA's office has finally raised the white flag, and Silverstein feels the hefty settlement "sends a message to prosecutors to review applications for search warrants very carefully, especially when the search seeks evidence of how someone has exercised his First Amendment rights." In addition, "the legal ruling reaffirms that satire, parody and expressions of opinion are fully protected by the First Amendment."
We've got a call in to Mink, who continues to live in the Greeley area. If we hear back from him, we'll update this post.
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