Newspaper article THE JOURNAL RECORD

10th U.S. Circuit Court of Appeals Rules in Case Challenging Colorado's Criminal Libel Law

Newspaper article THE JOURNAL RECORD

10th U.S. Circuit Court of Appeals Rules in Case Challenging Colorado's Criminal Libel Law

Article excerpt

It may have been offensive that the Internet-based student journal The Howling Pig parodied the views of University of Northern Colorado professor Junius Peake in a column by "Junius Puke," accompanied by a photo bearing a strong resemblance to the professor.

Peake thought so, and called the Greeley, Colo., police, who seized the personal computer and other written materials of Thomas Mink, the journal's creator.

Objecting to the column and the doctored photo, which showed him wearing dark sunglasses and a Hitler-like mustache, Peake claimed he was a victim of criminal libel under Colorado law.

No charges were ever filed against Mink.

A Colorado federal trial court ruled against Mink, dismissing his challenge of Colorado's criminal libel law for lack of standing, as well as his claim of statutory damages, holding that he failed to state a claim.

The 10th U.S. Circuit Court of Appeals this week agreed on those points, seeing no credible threat of prosecution of Mink, but reversed the district court's dismissal of Mink's damages claim arising out of the search of his residence. The lower court held that Mink's claim was barred by the absolute immunity of the prosecutor who reviewed the search warrant, but the appeals court disagreed.

The 10th Circuit panel said a prosecutor is entitled to absolute immunity for actions that cast him or her in the role of an advocate in the government's case.

"Absolute immunity, however, does not extend to those actions that are investigative or administrative in nature, including the provision of legal advice outside the setting of a prosecution," the court wrote.

In this case, the appeals court said, the assistant district attorney did not contend she acted as an advocate, but alleged that her role was limited to review and approval of the search warrant application.

Because the prosecutor was providing legal advice, the panel said, the lower court erred in dismissing the student's damages claim on the ground that it was barred by absolute immunity.

As for Peake's criminal libel claim, the parties agreed on appeal that under U.S. Supreme Court precedent the Colorado statute was unconstitutional under the fact of this case, conceding that the professor is a public figure. …

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