GOP Bill Would Repeal Antiquated Libel Penalties

February 20, 2012

DENVER, CO – Before slamming someone in a blog, posting a critical comment on Facebook or penning a poisonous opinion in a publication, think twice. In Colorado, you could be charged with libel and face criminal prosecution – and the accuser doesn’t have to prove malice.

Free speech will be protected with the passage of Senate Bill 102, sponsored by Sen. Greg Brophy (R-Wray), that strikes the criminal libel law, a class 6 felony punishable by up to a $100,000 fine and a two-year prison sentence.

“Are you kidding me? The government could prosecute for something you wrote?” said Brophy of the state statute that’s been on the books since the 1880s.

“You post something on Facebook, which 650 million people are doing around the world, and you could be prosecuted with a class 6 felony with the full force of the government coming down on you,” declared Brophy.

The bill is expected to pass the Senate on Monday, and then be sent to the House for consideration.

Senate Bill 102 would repeal Colorado Revised Statute 13-13-105 which states:

“A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, 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, commits criminal libel. It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living. Criminal libel is a class 6 felony.”

Coloradois one of nearly two dozen states that have criminal libel statutes, but in most of those states the penalties are misdemeanors. The archaic reference to “blacken the memory of the dead” has remained on statutes in Alabama, Colorado, Georgia, Kansas, Nevada and Oklahoma.

That clause, Brophy noted, could lead to criminal charges against kiss-and-tell authors like Mimi Alford, whose recently published book “Once Upon a Secret” reveals lurid details of an alleged affair with John F. Kennedy.

“These statutes are flawed and subject to constitutional challenges,” said Deputy Attorney General Michael Dougherty, who oversees Colorado’s Criminal Justice Section. He said that Brophy’s bill does not erode state statutes that provide civil remedy for libel.

Colorado’s criminal libel statute conflicts with free speech rights granted by the First Amendment of the U.S. Constitution. Since Jan. 1, 2007, 24 cases of criminal libel were charged in Colorado, he said, but the few convictions were in conjunction with other serious crimes.

One person charged with criminal libel was Tom Mink, a college student who had satirized one of his professors at the University of Northern Colorado in a blog called the Howling Pig.

“In December of 2003, a Weld County Sheriff’s deputy came to my mom’s home where I had been using a computer to publish the thing, and served me with a search warrant based on a criminal libel charge,” said Mink.

After his computer was seized to search for evidence, Mink enlisted the help of the American Civil Liberties Union (ACLU). The criminal charge was dropped and a lawsuit was filed against the Weld County District Attorney’s office that last year wound up paying a $425,000 settlement. Of that amount, Mink received $25,000.

During the Feb. 14 Senate Judicial Committee hearing, Dougherty said that the existing criminal libel statute could lead to expensive constitutional challenges and settlements such as in the Mink case. As in the Weld County case, those costs are borne by taxpayers.

The statute repeal is supported by the Colorado Attorney General’s office, ACLU, the Colorado Press Association, the Colorado Broadcasters Association and the Colorado Criminal Defense Bar affiliated with the National Association of Criminal Defense Lawyers.

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