Vincent Carroll describes a recent case of criminal libel, then concludes:
[J.P.] Weichel [of Loveland] may not be a very nice guy, but the answer isn’t to put him in jail for speech that doesn’t endanger a soul. If what he said was false, then the victims should sue him for libel.
But leave the district attorney out of it.
It is a horribly written, nonobjective law:
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.
Notice that the law expressly allows the possibility of true “libel,” though the more common sense of the term implies that a libelous statement is false. The first paragraph contains no test of truth.
We have every right — and indeed a moral responsibility — to “blacken the memory” of bad people who have died, as well as to impeach the reputations of the living insofar as they negatively impact the culture or polity.
Colorado’s criminal libel statute is an affront not only to free speech but to justice.
I hereby publicly declare that the politicians who supported the passage of this statute thereby violated liberty and justice and implemented an idiotic law. My express purpose here is to “blacken the memory” of those politicians. I further publicly declare that among the “natural defects” of Larimer County District Attorney Larry Abrahamson, who filed charges against Weichel, is a willingness to trample liberty and justice, insofar as he sanctions the criminal libel statute. I intend here to impeach his reputation, and I heartily encourage the public to heap upon him hatred, contempt, and ridicule for this case.
(While I hate to follow such a diatribe with a magnanimous note, Abrahamson may have inadvertently performed a public service by again bringing this unjust law to public light and giving the 2009 legislature another opportunity to repeal it. Now all Abrahamson needs to do to restore his reputation is to testify for the law’s repeal.)
By the way, truth is usually a defense against libel. But in many cases, saying nasty things about private citizens may violate privacy laws. That is, say true bad things about public officials and you are OK. Start writing about your neighbor’s porn addiction and you still might be in hot water.
I’m no expert, but Article II of the Colorado Constitution would seemingly give some powers to jurors to nullify any guilty verdict in a criminal libel case:
Section 10. Freedom of speech and press. No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.
As long as you don’t threaten someone with extortion (money or power for concelment in this case), the law should be on the side of truth, period.
In a conflict between truth and privacy, truth should win. If you offer your neighbor a choice: pay or I’ll tell the world about your porn addition, you are trying to force him (or her) to put money above truth. Again, truth should win (and you go to jail for extortion, a form of force).
People certainly have a right to do things they are ashamed of in private, but they have no right to be insulated from the consequences of their actions (which is to feel shame when their actions are discovered and publicized). If the shameful things are illegal as well(like a hobby of torturing kittens is cruelty to animals), they cannot avoid prosecution.
Protection against illegal search, etc. were not devised to conflate the truth but to prevent the power of the state from using its vested power advantage against its citenzenry for its own agenda (which is to preserve or further its power).
The problem is both of the victims in this case are former employee’s of the Larimer County District Attorney’s office. The female victim didn’t really start pushing the investigation until they were in the middle of a custody evaluation.