Ending a threat to free speech

In a rare demonstration of unity, the state Senate gave unanimous approval Monday to a bill repealing Colorado’s criminal libel statute. The House should do likewise. The law in question is unnecessary, unhelpful and potentially dangerous.

Accusations of libel are typically handled as civil cases. People who believe themselves to have been libeled can sue they think defamed them. Criminal libel, however, is just what it sounds like – a charge that involves possible prison time for defamatory writings. Colorado law provides penalties of one year to 18 months in prison and fines up to $100,000.

That poses a series of problems. For starters, libel is inherently difficult to define or prove. (The Associated Press Stylebook devotes about a dozen pages to explaining what can be libelous.)

Not only do legal definitions of libel vary from state to state, but whether something is libelous can vary with circumstances and the status of the person claiming to be defamed. Writings about public figures, particularly political figures, are afforded greater protection than if the subject is a private citizen.

And one of the most common forms of written commentary is satire, some of which can be quite biting. Just such an instance was one case cited as a reason to repeal Colorado’s criminal libel law.

In 2003, police searched the house and seized the computer of one Tom Mink, then a student at the University of Northern Colorado. A professor had complained to the local district attorney alleging that he had been libeled in a satirical newsletter Mink put out. Mink had used computer software to make the professor look like a member of the rock band KISS. Charges were never filed against Mink and he later won a $425,000 lawsuit against the prosecutors.

Clearly the authorities erred in that case. But it was the criminal libel law that opened Mink up to that sort of abuse and that allowed the prosecutors to divert criminal justice resources to what should have been at most a civil matter.

And what if the newsletter in question was more serious. Criminalizing the written word is a time-honored way of stifling dissent and political opposition. A case like Mink’s may have ended up with him being vindicated, but had this been about an election he may well have been silenced until after the votes were counted.

The other case critics of the law point to happened in Durango. A one-time Fort Lewis College student named Davis T. Stephenson was convicted of criminal libel in 2006.

The point to that example, however, is that the criminal libel statute was not needed to send him away. Stephenson was convicted of a total of 26 felonies, including forgery of a government-issued document, possession of a forged instrument, criminal impersonation and stalking. More than 40 people testified against him and the jury saw more than 100 pieces of evidence. Stephenson’s offenses included setting up a fake rape-me fantasy website purported to be that of a Fort Lewis professor. Her real address was included.

A criminal libel law is not needed to prosecute crimes like that. Where it would come in handy is in attacking political opponents, stifling consumer complaints, and protecting corporate or government misconduct. There is enough of that already.

The state attorney general – a law-and-order Republican – supports doing away with criminal libel. He is joined in that by the state public defender and the American Civil Liberties Union.

The House should also agree.

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