Posted by Eugene Volokh:
Criminal Libel in Colorado, Again in the News:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228348104
Two stories from the past month. [1]ABC News reported yesterday:
A man [J.P. Weichel] accused of making unflattering online comments
about his former lover and her attorney on Craigslist has been
charged [in October] with two counts of criminal libel....
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 [2]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 [3]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, [4]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 falsity. 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.
References
1. http://www.foxnews.com/story/0,2933,460586,00.html
2.
http://www.chieftain.com/articles/2008/11/03/news/local/doc490e91fce3eac412872872.txt
3. http://www.rcfp.org/newsitems/index.php?op=keyword&key=211
4. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=379&invol=64
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