Prosecutor liable for unconstitutional search of a student

[Tonington]

Court Holds Prosecutor Personally Liable for Unconstitutional Search of Student Who Created a Parody Newsletter - FIRE

After the United States Court of Appeals for the Tenth Circuit reaffirmed that "speech, such as parody and rhetorical hyperbole, which cannot reasonably be taken as stating actual fact, enjoys the full protection of the First Amendment," a federal district court in Colorado last week held a deputy district attorney personally liable for an illegal search that she approved to be conducted on the home of a student blogger.

The facts of this case, from a First Amendment perspective, are stunning. Thomas Mink, at the time a student at the University of Northern Colorado (UNC), created an Internet-based newsletter called The Howling Pig (THP). The editor-in-chief of THP was identified in the newsletter as Mr. Junius Puke, a parody of Professor Junius Peake, a finance professor at UNC. Junius Puke was depicted on the blog via a photograph of Professor Peake that was altered to include sunglasses, a small nose, and a small mustache. This parody blog, according to the Student Press Law Center, led to Mink's home being searched, his computer being seized, and his spending a week in jail.

That is because, in 2008, Professor Peake reported to the Colorado police that he believed that he was a victim of criminal libel based on THP's portrayal of the fictitious Junius Puke. Shockingly, under Colorado law, criminal libel is committed when people "knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to ... impeach the honesty, integrity, virtue, or reputation or expose the natural defect of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule." That law is so overbroad as to already violate the First Amendment. Mink argued as much, especially because the truth is no defense to the charge that a publisher/writer exposed the natural defects of someone. See C.R.S. §18-13-105. However, the Tenth Circuit ultimately held that Mink lacked standing to challenge the statute as a whole, and, to this day, a violation of Colorado's criminal libel statute carries a penalty of 12 to 18 months.
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Now that ought to make some over zealous prosecutors think twice!

 

[DurkaDurka]

I don't think i've even heard of "criminal libel" before, regardless, there were some serious abuses of rights here, kinda scary.

 

[The Old Medic]

This will be overturned by the US Supreme Court, if appealed to that level.

Keep in mind that a LOT of Federal Judges make a LOT of rulings that simply don't stand up after all appeals have been decided.

And "Criminal Libel" is not just a Colorado offense. It is an offense in almost all of the States, and there is also Federal Criminal Libel.

 

[Tonington]

Keep in mind that a LOT of Federal Judges make a LOT of rulings that simply don't stand up after all appeals have been decided.

It was a Federal Judge dismissed the case, the appeal was successful in the 10th Circuit court. Parody is protected speech, therefore it can't be used as probable cause to search. You think that the Supreme Court would rule in favour of censorship, or that they would rule that Prosecutors must be given free reign, even when they are operating outside of the Constitution?

 

[cranky]

ok, so lets see if I got this straight. because he modified the profs name, mink wasn't libel? But what about the photo, if he used a photo of the prof and not of someone else, are there no rationales that would lead this to a libel case?

 

[Tonington]

Parody is a protected form of social commentary, as well as criticism.

Here's a sample from The Howling Pig:

The Howling Pig would like to welcome our new Editor-in-Chief. Due to religious reasons she does not want to reveal her name, and so would like to be known as Rainbow Brite. Rainbow Brite is well qualified for her new position having already established a reputation as a cult icon. Known for her outspoken stands on issues and almost obsessive

Our founder, spiritual leader, and the inspiration behind The Howling Pig, Mr. Junius Puke recently suffered a fatal encounter with humanity. He lived a long and tumultuous life. His tenure at The Pig has been controversial, but productive and we believe that he died having accomplished everything he had set out to do in his life.
(Disclaimer)

The Howling Pig would like to make sure that there is no possible confusion between our editor Junius Puke and the Monfort Distinguished Professor of Finance, Mr. Junius “Jay” Peake. Mr. Peake is an upstanding member of the community as well as an asset to the Monfort School of Business where he teaches about financial microstructure. Peake is active in many community groups, married and a family man. He is nationally known for his work in the business world, and is consulted on questions of market structure.

Junius Puke is none of those things and a loudmouth know-it-all to boot, but luckily he’s frequently right and so is a true asset to this publication.

(Further Disclaimer)
Rainbow Brite is well aware of her apparent resemblance to Representative Marilyn Musgrave. While she enjoys performing the occasional impression at parties, Ms. Brite wants very much to distance herself from Congresswoman Musgrave and make it clear that all views that she may express in her role as editor are her own and not that of the Congresswoman.
The Howling Pig would also like to make clear that Ms. Brite has no connection with the Mattel toy company and that her association with this publication should not be construed as an endorsement by that company.

 

[Praxius]

I'm sorry, but if someone decides to take a photo of myself, ie: my identity, and use it to their advantage at the expense of my own, without permission, then I should be able to seek some sort of legal action against them.

That's why Weird Al Yankovic generally seeks permission from other artists to parody their music..... it's their property that he would be making a parody out of..... and our own damn identities are our own damn property, more so.... otherwise, why bother with driver's licenses, passports, & other means of Identification stating who we are if anybody else can freely use our identities and images of us for whatever they damn well please?

I don't have an issue with people dressing up and trying to act or parody someone, or even simulating their voice.... but once you start using actual images, video and audio of that specific person for your own gains and without that person's permission, you cross the line.

My issue in this case isn't the fact that they used a name that was similar to this professor's name.... it's them using actual images (his identity) of him without his permission..... regardless if they photoshopped the image or not..... unless they took the photo themselves, they did not hold the legal rights to that property to do whatever they please.

Working in a photography studio in Halifax a number of years ago, I know very well that beyond the proofs we supplied clients, beyond the actual photos they bought and paid for, and while those images were of their identity.... the actual property of those photos were of the photo studio and if anybody duplicated or otherwise stole these images from the studio (including the person who is in the photograph) they'd be seeking some heafty legal punishment for their actions.

The person in the photo can not demand to have the original negatives or to have all the copies of their photo. The Studio owns the rights to the photo and its negatives..... but at the same time, they can't freely distribute that photo to anybody else, be that free or for profit. They can keep it on record for future prints by that individual's request, they can even keep it for their own personal records at the studio..... or they can destroy all the copies of that print.... but nothing more..... because while they own the rights to the photo(s) taken, they do not own that person's image/identity to do with as they please. (At least they sure as hell shouldn't)

So even if this professor didn't take the photo himself, even if a loved one of his didn't take the photo.... if it was taken by a photography studio and they saw their photo being used in such a way, there would be even more legal battles going on, if that studio wished to do so.

Out of all the things in this world and in our lives that we don't have much control over, we should at the very least have some level of control over out identities & how others use our identities to their advantage.

 

[TenPenny]

I don't have an issue with people dressing up and trying to act or parody someone, or even simulating their voice.... but once you start using actual images, video and audio of that specific person for your own gains and without that person's permission, you cross the line.
sure as hell shouldn't)

Does that include politicians? Nobody should be allowed to use images of a politician to make political satire?

 

[Praxius]

Does that include politicians? Nobody should be allowed to use images of a politician to make political satire?

I figured that would pop up eventually. Unless they have permission from the individual politician, or say, they publically announce they couldn't care what anybody does with images of them, I'd say no.

As an example, if I was Prime Minister or President, Premiere, Mayor, etc. the moment I enter into politics or run for office, I would personally proclaim in public, via interview or questioning that I have no issues of anybody using my images, audio or videos of me for whatever they damn well please...... Then anybody can use that as legal cannon fodder if I tried to sue them.... or to confuse the issue more, I could later on publically state that from this date on, I retract my approval of people openly using my images/identity for whatever, and thus, must seek approval from me first. Anything done before that time falls under the era of when I approved and nothing can be done.

Now when it comes to showing video and photos of a politician or individual in a news report, that should be fair game, as it's just news and it's generally reporting on factual information which should be un-bias..... but when it comes to people using video, audio or images of a person for their own personal gain/profit/fame or at the expense of the person in question, such as making a movie, a song, a YouTube video, propaganda, their own web site, etc. the line should be drawn there and one should at least get permission to use those images for their own personal entertainment first.

I'm not saying this is all how it is.... I'm just saying this is how I feel it should be.

It's not a restriction on freedom of expression or speech, as you can still voice and express your opinions on someone all you wish, how often as you wish, whenever you wish..... but to use their images, their identity, what I consider their property, and screw it all up, or pop their head into a fake image of them eating a BBQ'd puppy, or otherwise, I think is going beyond any protected "Freedom"

And yes, I have in the past used a photo of Stephen Harper eating the head of a baby kitten, but I didn't create that image and in my above examples, if Harper wished to seek legal action against someone, he'd seek it to the person who originally created that image and made it available forever on the internet.

Then again, if what I suggest ever became a reality, then I imagine we'd have the next 20 decades of the courts being clogged with millions of people, especially celebrities & politicians sueing everybody under the sun for using their images as described...... so maybe it's not a good idea.... never mind.

However, in the above case in the original post, I feel there should be some sort of protection of people from such abuse & harassment, especially online...... otherwise, I can see a lot of idiot school-kid bullies taking advantage of the system and continually taking images of a fellow student and posting them online where they're doing something or look a certain way that would make their lives in school even worse then before..... and they'd have very little protection against such actions and no way for anybody to stop them continuing the abuse.

 

[Tonington]

Well there's a fine line. Parody doesn't cover false statements which are implied to be true.

Editorial cartoons like Bruce MacKinnon's in the Chronicle Herald is an example; no reasonable person would interpret those cartoons as being factual.

 

[TenPenny]

And yes, I have in the past used a photo of Stephen Harper eating the head of a baby kitten, but I didn't create that image and in my above examples, if Harper wished to seek legal action against someone, he'd seek it to the person who originally created that image and made it available forever on the internet.

So you're free to spread libel around simply because you didn't create the image, but are spreading someone else's libel around? And you feel that makes you immune some how? You're not responsible, because you aren't the creatior, simply copying what someone else did.

 

[Praxius]

Well there's a fine line. Parody doesn't cover false statements which are implied to be true.

Editorial cartoons like Bruce MacKinnon's in the Chronicle Herald is an example; no reasonable person would interpret those cartoons as being factual.

Well just to clarify, I mentioned above that so long as you don't use actual images/audio/video of the individual.... drawing pictures, dressing up or otherwise portraying an individual without using actual elements from them (like a photo of them and then putting glasses, fake nose & stash on them) should be fair game..... the above cartoon wouldn't bother me.

I'm all for satire and poking fun at people..... I'm an artist/cartoonist as well and have a bit of a twisted sense of humor..... but satire & poking fun as people can still be done without actually using their actual image/identity.

And not all of it is meant as Satire or just simple fun, but actually to hurt someone..... let's say you were having sex with your partner or doing something else that is private and you don't want others to know a lot about simply because it's none of their business, and someone came along, took a photo or video of what you were doing and then exposed it online for all to see..... put yourself in the shoes of a kid in school and something like that happened..... should the bullies or whoever did this be able to walk free with no consequence because they were just poking fun? Should they be let go simply based on the argument of "Freedom of Expression?" or Speech??

Speaking of students.... there's also the laws against sexting and minors (or even adults) posting images of themselves or other minors online or to each other, whom can face pedophile-related charges...... should they now be able to walk free with no consequences based on them merely having the freedom of expression, freedom of speech or artistic expression?

There have to be limits to protect the vulnerable...... and they can exist without actually harming one's legitamate freedom of expression & speech towards things that truly matter or truly do no harm.

No matter what we're talking about..... be that freedom of expression, speech, other means of rights, democracy, communism, socialism, capitalism, etc. etc.... none of them are entirely perfect.... and when any of them are left with zero restrictions or regulations, people abuse them and use those freedoms & rights to attack other people's freedoms & rights.

 

[Tonington]

I'm all for satire and poking fun at people..... I'm an artist/cartoonist as well and have a bit of a twisted sense of humor..... but satire & poking fun as people can still be done without actually using their actual image/identity.

Satire doesn't work without a subject. What connection is there to reality if you can't identify what the parody is of?

 

[Praxius]

So you're free to spread libel around simply because you didn't create the image, but are spreading someone else's libel around? And you feel that makes you immune some how? You're not responsible, because you aren't the creatior, simply copying what someone else did.

Only for the fact that it'd be virtually impossible to actually charge & punish every single person around the world who has copied, posted, shared or used that image in anyway they did, thus you target the person who created the situation.

It's similar to how most corporations and businesses seek legal action against the people who share and distribute programs, movies and music on a grand scale and don't bother too much with those who downloaded the file(s) once and whom didn't continue with the sharing..... to do so would simply clog the legal system so much that it'd either take years to clear up the back log or no other more serious crimes would be addressed, simply because there just isn't the manpower & resources to tackle them all...... much like how police usually target drug dealers more often then they try and target mere users.

Let's turn this around a bit..... let's say those Dutch guys who made those cartoons poking fun of Muslims and their beliefs got charged for what they did and found guilty..... should every single person who shared or used that cartoon since be sought out to be punished and jailed?

Imagine just how grad of a scale that would end up being if they tried to make that happen.

The sh*t would fly and create many more problems then it would solve.

Which is why later on in my post I tended to change my view on my original views..... I feel cases like the above should not be automatically protected by freedom of expression/speech..... but should be dealt with on a case by case basis instead..... otherwise the abusers would have comeplete freedom to continue to abuse and insult people & those people wouldn't have any protection at all..... and at the same time, it'd be difficult for people to actually express themselves without fear of constantly being sued.

It's a bit of a messy situation, really.

 

[cranky]

In Canada,if you sue someone for libel, it is also your onus to prove damages. That is why it is so seldom done. It simply isn't worth it for me to drop a $10,000 retainer down on lawyer to sue someone that is libel on this forum because it would be a huge waste of money if I can not link the libel activity to a loss of money, loss of election, loss of professional status, etc.

Now, when you are libel to a doctor or a professor, someone whose reputation is damn important, and is directly connected to published studies and research money, you are really pushing your luck and asking for it.