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#1 Criminal Libel in Colorado, Again in the News:
12-05-2008, 03:44 PM
- Join Date
- Aug 2005
Criminal Libel in Colorado, Again in the News:
The case began when a woman told Loveland police in December 2007 about postings made about her between November and December 2007. Court records show posts that suggested she traded sexual acts for legal services from her attorney and mentioned a visit from child services because of an injury to her child.
Police obtained search warrants for records from Web sites including Craigslist before identifying Weichel as the suspect. Weichel shares a child with the woman....
And from The Pueblo Chieftain a month ago:
Prosecutors this week invoked an arcane, seldom-used statute to charge a Pueblo County man for allegedly disseminating false information about someone.
Robert Ezekiel Tafoya, 51, was charged with one felony count of criminal libel, according to court records. Convictions for the offense are punishable by up to 18 months in prison for first-time offenders....
District Attorney Bill Thiebaut said Tafoya used modern technology, in this case computer programs, to alter pictures of his accuser.
“The investigation showed that the defendant pasted pictures of the face of one person onto the body of other persons and published or disseminated the pictures electronically to others,” Thiebaut said. “We believe it impeached the reputation (of his accuser) and those pictures were being used to ridicule her.” Thiebaut would not elaborate on the relationship between Tafoya and his accuser, or what the doctored photos depicted, except to say that they cast Tafoya's accuser “in a compromising position.”
For more recent items from other states, see this Reporters' Committee for Freedom of the Press page.
Colorado is one of the substantial minority of states that still has criminal libel laws. Many people have argued that criminal libel laws are unconstitutional, but the Supreme Court has never so held. The Court's most recent decision about this, Garrison v. Louisiana (1964), required that in cases on matters of public concern about public figures a defendant couldn't be held liable unless the prosecution could prove that the defendant knew the statement was false, or was aware of a high probability that it was false. I'm pretty sure, given later cases, that the same would be true in cases on matters of public concern about private figures. But the Court has not gone further to hold that all criminal libel laws are per se impermissible, and it also has not spoken to what could be done when the statement is false and on a matter of purely private concern, which the statements in these cases likely qualify as being.
The Colorado Supreme Court has held that its current criminal libel statute was constitutional, at least as to statements on matters of private concern, and has even said that it was constitutional to place on the defendant the burden of proving truth. See People v. Ryan, 806 P.2d 935 (Colo. 1991). I think the court was wrong about the current statute, because the statute is unconstitutionally overbroad even as modified by the court decision: (1) It punishes even negligent or reasonable mistakes of fact about private figures on matters of public concern — speech that, under Gertz v. Robert Welch, may not be punished — and (2) it improperly leaves the defendant with the burden of proving truth in private figure/public concern cases, which is unconstitutional under Philadelphia Newspapers v. Hepps. But obviously the Colorado courts disagree with me on this.
Libel is arcane? Really? I'm pretty sure I knew what libel was in elementary school.
HoyaBlue: I take it that the claim was that criminal libel statutes were arcane.
Back in the 80s, a government atty who'd been a Virginia prosecutor mentioned a criminal slander case. I was astounded then to hear that such things existed. I thought they were a legacy of the 18th century.
The Colorado Supreme Court has held that its current criminal libel statute was constitutional, at least as to statements on matters of private concern, and has even said that it was constitutional to place on the defendant the burden of proving falsity.
I think you meant "truth". [Fixed, thanks! -EV]
That the burden of (dis)proof of what should be an element of the crime is upon defendant in a criminal case seems strange. That a court would uphold it as constitutional seems even stranger, except that falsity is not an element of the crime under the statute.
And it gets worse. The statute prohibits defaming the dead:
18-13-105. Criminal libel.
(1) 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.
(2) 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.
(3) Criminal libel is a class 6 felony.
It looks like a law out of the dark ages, or some alternate history fiction. Apparently the legislature hated the First Amendment, and found a very clever way to attack it by sleight of hand. Just omit an element (falsity) and shift the burden of proof by graciously permitting the crime to be justified by affirmatively disproving the missing element.
12-05-2008, 03:46 PM
- Join Date
- Aug 2005
Craigslist comments prompt criminal-libel charges
The crime of speaking ill of your betters. Inside the First Amendment
By Paul K. McMasters
First Amendment Center ombudsman
In 17th Century England, it was a capital offense even to imagine the death of the king. Equally harsh punishment awaited those who criticized their rulers.
In today’s America, we have discarded the idea of royal infallibility, but there remain in our law vestiges of that early English policy toward speaking ill of our betters. And though the act of criticism may not be a capital offense, it certainly can be a criminal one in more than 20 states.
In fact, such laws are dusted off and applied with alarming regularity for a nation that prides itself on settling differences over speech in civil court rather than criminal court — with the government as impartial referee rather than prosecutor.
The latest American to run afoul of a criminal-libel law is Juan Mata, who was sentenced to a year in jail last month in a New Mexico court. Although the judge suspended the prison sentence, Mata was ordered to pay $114 in court costs and perform 50 hours of community service.
What exactly was Mata’s crime? After an argument with police over a traffic stop in November of 2002, Mata began picketing the police station in Farmington, carrying signs accusing one officer of being a liar. Later, he called for an investigation of the officer. In December 2004, he filed a civil lawsuit claiming harassment by the officer. Two months later, the local prosecutor charged him with criminal libel, harassment and stalking.
FORT COLLINS, Colo. — A man accused of making unflattering online comments about his ex-lover and her attorney on Craigslist has been charged with two counts of criminal libel.
Larimer County District Attorney Larry Abrahamson charged J.P. Weichel, 40, of Loveland, last month over posts he is accused of making on Craigslist’s “Rants and Rave” section.
Colorado’s libel statute, dating to the 19th century, allows criminal prosecution for speech “tending to blacken the memory of one who is dead” or to “expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule.”
Criminal libel carries a punishment of up to 18 months in prison.
“It’s not a charge you see a lot of,” Abrahamson said.
The case began when a woman told Loveland police in December 2007 about postings made about her between November and December 2007. Court records show one post suggested she traded sexual acts for legal services from her attorney, and there was a mention of a child services visit made because of an injury on her child.
Police obtained search warrants for records from Web sites including Craigslist before identifying Weichel as the suspect. Weichel shares a child with the woman.
Weichel, confronted by detectives at his workplace in August, allegedly said he was “just venting,” according to court records. A phone number for Weichel could not be found.
In 2004, Thomas Mink filed a lawsuit challenging the constitutionality of Colorado’s libel statute, and news-media organizations including the Associated Press and the Colorado Press Association filed friend-of-the-court briefs arguing against the law.
At the time, Mink feared he would be prosecuted for libel over his Web-based journal “The Howling Pig.” Greeley police had seized the former University of Northern Colorado student’s computer after a professor complained about a spoof of the professor in the journal.
Prosecutors later said they did not intend to prosecute Mink. A federal judge dismissed Mink’s lawsuit, but Mink filed an appeal in July in the 10th U.S. Circuit Court of Appeals.
Denver attorney Steve Zansberg, who specializes in First Amendment law, said prosecutors seeking criminal-libel cases could have a “chilling” effect on free speech in Colorado, particularly over the Internet.
Abrahamson wasn’t so sure. He said it’s up to police departments to pursue cases.
Zansberg contends the 19th century-era law is outdated, is unclear about stating opinions, and is written in such a way that dead people could be victims of criminal libel.
Other criminal-libel cases have been filed recently in Durango and in Pueblo, the Loveland Connection reported.
Weichel’s libel case continues in court next month
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