The publisher of an Internet journal lacks standing to bring a facial challenge to the constitutionality of Colorado's criminal libel statute, the U.S. Court of Appeals for the Tenth Circuit affirmed April 16, also finding his claim for prospective relief to be moot (Mink v. Suthers, 10th Cir., No. 04-1496, 4/16/07).

The Tenth Circuit departed from the district court, however, by holding that a prosecutor, who reviewed a police detective's affidavit for a warrant to search the publisher's house, is not entitled to absolute immunity from the publisher's claim for damages arising from the search. The appellate court instructed the district court to consider the prosecutor's claim for qualified immunity on remand.

Thomas Mink, a college student, created and published an Internet-based journal that contained thinly disguised satirical depictions of a professor. The professor complained to the local police, who commenced an investigation of the student for potential violations of the state's criminal libel statute. The police, in conjunction with the local district attorney's office, obtained and executed a warrant to search the student's residence.

The police told Mink's lawyer that they were recommending that criminal libel charges be filed. Mink filed an action in the U.S. District Court for the District of Colorado seeking prospective declaratory relief that the statute was unconstitutional, and claiming that the search and seizure violated his rights. Thereafter, the district attorney issued a “no file” decision, concluding the statements at issue could not be prosecuted under the statute. Mink's amended complaint repeated the earlier allegations, claimed he had continued and would continue to publish similar content, and named deputy district attorney Susan Knox in her individual capacity under 42 U.S.C. §1983 and the Privacy Protection Act, 42 U.S.C. §2000aa, which creates a right of action for the improper seizure of media materials.

The district court found that Mink lacked standing to challenge the libel statute, that he failed to state a claim under the Privacy Protection Act, and that absolute immunity barred his damages claims against Knox.

Criminal Libel.

The challenged statute, Colo. Rev. Stat. 18-13-105, criminalizes the knowing dissemination of statements “'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.’” Mink contended that the statute is overbroad “because it punishes libelous statements with no fault requirement and without placing the burden of proving falsity on the prosecutor,” the court said.

The Colorado Supreme Court's opinion in People v. Ryan, 806 P.2d 935, 19 Med.L.Rptr. 1704 (Colo. 1991), narrowed the potential scope of the libel statute, by declaring it unconstitutional insofar as it applies to constitutionally protected statements about public officials or public figures on matters of public concern. According to Mink, the statute remains unconstitutional despite the Ryanconstruction.

Mink was assured by prosecutors that he would not be charged, eliminating the threat of prosecution that would constitute “injury in fact” for standing purposes, the court found. The court acknowledged that this occurred between Mink's original and amended complaints, and that Mink was subject to a search of his house and seizure of his computer and papers at the time of the original filing. However, “the district attorney disclaimed an intent to prosecute immediately after the lawsuit was filed [and] well before his office filed an answer or motion to dismiss,” the court said. It noted that the threat of prosecution was removed by the time Mink filed his amended complaint, thus defeating Mink's standing.

The court found further that Mink's claim for prospective relief was moot. The district attorney indicated that Mink would not be charged because the statute could not be constitutionally applied to Mink's conduct. Further, the professor who was the target of Mink's writings is a public figure, and the Ryan decision confirmed that Colorado's libel statute embodies the standards requiring proof of falsity and actual malice.

Claims Against DA.

The district court correctly found that Knox, who did not participate in the search, could not be liable under the Privacy Protection Act, the court affirmed. Turning to Mink's Section 1983 claim, the court explained that prosecutors are entitled to absolute immunity from civil rights actions arising from their judicial conduct. The standard is applied to specific instances of conduct by using the “functional approach,” under which the issue is whether the prosecutor was functioning as an advocate, rather than as an investigator or administrator, when she engaged in the conduct at issue.

The Tenth Circuit's “continuum based” functional approach looks to how “distant” a prosecutor's activity is from the judicial process. Absolute immunity may attach to administrative or investigative activities so long as those activities are necessary to the prosecutor's role as an officer of the court.

The court held that Knox “was not wearing the hat of an advocate and, thus, is not entitled to absolute prosecutorial immunity.” The prosecutor was not preparing her case when she reviewed the affidavit, the court said. The search obviously was part of a continuing effort to obtain evidence, it added. The court acknowledged cases in which prosecutors were absolutely immunized for drafting, filing, and arguing in support of an arrest or search warrant, explaining that in those cases the prosecutors were acting as advocates by evaluating evidence, preparing pleadings, and appearing in court.

The full text of Mink v. Suthers will be published in an upcoming issue of Media Law Reporter.