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Criminal Libel in Colorado, Again in the News:

Two stories from the past month. 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 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.

HoyaBlue:
Libel is arcane? Really? I'm pretty sure I knew what libel was in elementary school.
12.3.2008 7:19pm
Eugene Volokh (www):
HoyaBlue: I take it that the claim was that criminal libel statutes were arcane.
12.3.2008 7:22pm
Dave Hardy (mail) (www):
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.
12.3.2008 8:24pm
Fub:
Eugene Volokh wrote:
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.
12.3.2008 8:26pm
John (mail):
I thought defamatory statements were a classic exception to the first amendment.

Without some constitutional issue, I'd think a state could do pretty much whatever it wanted through its legislature, and could undue if the people wanted to.

No?
12.3.2008 8:34pm
corneille1640 (mail):

Libel is arcane? Really? I'm pretty sure I knew what libel was in elementary school.

I wonder how many elementary-school-age children can give an adequate definition of libel today. They don't make schools like they used to....I didn't learn what libel was until I was in high school.
12.3.2008 8:40pm
whit:
i would have thought criminal libel was an oxymoron.

learn something new every day.
12.3.2008 8:47pm
arbitraryaardvark (mail) (www):
So it's a criminal offense in Colorado to publish cartoons about Mohamed?
12.3.2008 8:53pm
tsotha:
Prosecutors this week invoked an arcane, seldom-used statute...

Is it just me, or are we seeing more of this kind of thing lately?
12.3.2008 10:28pm
Jerrod Ankenman:
So it's a criminal offense in Colorado to publish cartoons about Mohamed?

As we learned in Lori Drew, everything is a criminal offense if someone wants to prosecute you!
12.3.2008 10:29pm
Fub:
John wrote at 12.3.2008 8:34pm:
I thought defamatory statements were a classic exception to the first amendment.
Defamation traditionally requires that the statements be false. Criminal conviction traditionally places the burden of proof upon the prosecutor to prove each element of the crime beyond a reasonable doubt.

The Colorado statute does not explicitly require falsity as an element of criminal defamation.

It places the burden of proof of truth upon defendant. Meeting that burden justifies the statute's defined act of defamation, but the defined act does not require false statements.

The prosecutor does not have to allege or prove falsity. The defendant must prove truth.

In another criminal context it would be as if the state could try someone for murder without having to produce evidence that anybody was dead. The defendant would have to prove he did not kill someone.
12.3.2008 11:25pm
Barton:
If truth is an affirmative defense, there is no problem with making a defendant prove it. For slander and libel, this makes sense, as I don't see how a plaintiff could disprove certain defamatory statements. For example, suppose a student puts an ad in the school newspaper stating that a certain professor trades higher grades for sexual favors. It would be ridiculous to require the professor to prove that's false in order to have a cause of action. At least it seems virtually impossible for a professor in this hypo to disprove these allegations. Reputations have value, and malicious acts to damage reputation should be punished. The Colorado case certainly is not about negligent speech on a matter of public concern, so I don't think Gertz helps the defendant all that much.
12.4.2008 12:21am
Ricardo (mail):
One thing particularly interesting about libel laws is the way they are used in Singapore (I believe both civil and criminal) to routinely shut down opposition. Singapore's justice system is based on common law, just like here, and it may be unfair to accuse all of its judges of running kangaroo courts. People make outrageous accusations all the time in politics -- I suppose it is Garrison v. Louisiana that protects our American-style take-no-prisoners approach to political debate.

The example of Singapore suggests that in practice putting strict limits on libel laws even when the statement may be false is essential to liberal democracy.
12.4.2008 1:28am
TruePath (mail) (www):
I'm not so much bothered by these laws in principal but I do worry they are both harmful and potentially unconstitutional as applied.


I mean the basic problem is that the kinds of acts that supposedly provoke the criminal libel prosecution occur not too infrequently and generally go unprosecuted. Now while it's likely not a constitutional problem to protect only a few from this sort of libel it is an unjust application of the law. Who you are and how much pull/sympathy you can generate shouldn't determine what kind of protection from libel you get.

I mean do you think that the man prosecuted for calling the professor a sexual deviant would have been prosecuted for criminal libel if he'd called some white trash guy living in a trailer park the same thing? Even though by all objective accounts I would not be surprised if the claim was more likely to be true of the professor (I know I'm a sexual deviant in the only sense it is a factual claim rather than an insult...my sexual practices deviate from the norm in our society).

----

As far as my worry about the as applied constitutionality it's the following. Given our natural human intuitions about justice and proper responses we can't help but be more likely to prosecute/convict someone who has engaged in true abusive verbal attacks on someone who then adds in a knowingly false one.

I mean c'mon if I set up a website about you that is filled with abusive and mean but true claims and added to that website a knowingly false claim about you can you really say I'm no more likely to be prosecuted than if I'd created a generally flattering website and then after some dispute added a knowingly false claim? Yet if you grant this it seems clear that as applied this sort of law is going to punish people for constitutionally protected speech.
12.4.2008 2:31am
whit:

Is it just me, or are we seeing more of this kind of thing lately?



i don't think that's necessarily true. i think we have blogs and the internet and this stuff is getting more exposure.

these defamation laws are almost as bad as canada's hate speech laws.

in neither case is truth a defense.

let's not also forget that in stories like this, the prosecutor gets all the flak. in cases where people are arrested for this stuff, it's the cops.

but it's the frigging STUPID LEGISLATURE that is responsible for stupid law.

they are the ones primarily to blame.

it is the prosecutor's job to enforce the law. even if it is stupid. it is not the legislatures job to make STUPID law. but they keep doing it.

i wouldn't be surprised if you took a list of all laws passed by citizen initiative, etc and compared them with laws passed by legislatures, if the latter group had more stupid and blatantly unconstitutional laws.
12.4.2008 4:16am
NickM (mail) (www):
The statute doesn't even accept truth as a defense on a "libel" that exposes the "natural defects" of the living.

This would appear to mean that a true report that an ostensibly heterosexual famous person was actually a closeted homosexual/bisexual could be a crime in Colorado!

Larry Craig was just from the wrong state.

Nick
12.4.2008 4:36am
wfjag:
First Lori Drew, J.P. Weichel, and don't forget Chris Norberg. Norberg is the subject of an article, and defendant in a suit Chiropractor Sues Patient Over Negative Yelp Review, by Ben Popken, (Nov 25 2008), on http://consumerist.com Defendant-Norberg’s website (w/ link to court’s docket and filings) http://standforspeech.com/

Norberg left a negative review on Yelp after he got into a billing dispute with chiropractor Steven Biegel. So, Biegel sued Norberg for defamation.*

Given that these are all e-publication cases, I'm surprised that there has been no discussion of 47 USC §230 and decisions like Barrett v. Rosenthal, 40 Cal. 4th 33; 146 P.3d 510; 51 Cal. Rptr. 3d 55 (Cal. 2006).

* Personally, I'd never heard of "Yelp" before.
12.4.2008 11:02am
Fub:
Barton wrote at 12.4.2008 12:21am:
If truth is an affirmative defense, there is no problem with making a defendant prove it.
Then there should be no problem with a statute prohibiting burglary:
1. Whoever breaks and enters a dwelling commits burglary, a felony.

2. The term "breaks" means removing or opening any barrier to ingress, however slight, by any means, to gain entry.

3. Ownership of the dwelling, or other right to enter, is an affirmative defense to the charge of burglary.
Since the right to enter the property is an affirmative defense, there is no problem with making defendant prove it.
12.4.2008 12:23pm
Dobchinsky:
EV wrote:

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.


After Gertz is whether the subject matter was a public concern still part of the inquiry, or is it all about whether the target of the speech was a public or private figure?
12.4.2008 12:39pm
Mark Mittleman (mail):
While Garrison v. Louisiana did not declare all criminal libel statutes unconstitutional, at least in the context of communications about private individuals which do not implicate matters of public concern, other cases have indicated that such statutes are unconstitutional for reasons of vagueness and/or overbreadth. See Gottschalk v. State, 575 P.2d 289 (Alaska 1978); Ashton v. Kentucky, 384 U.S. 195 (1966); Tollett v. United States, 485 F.2d 1087 (8th Cir. 1973); State v. Helfrich, 922 P.2d 1159 (Mont. 1996); cf. Commonwealth v. Armao, 286 A.2d 626 (Pa. 1972); I.M.L. v. State, 61 P.3d 1038 (Utah 2002).
12.5.2008 12:39pm