This week seems to mark the end of a perfect storm of ethical misconduct that almost drowned a young student in legal persecution for the non-crime of exercising his First Amendment rights. An insufferable and humorless bully with a professorship collided with an irresponsible prosecutor wielding an unconstitutional law, and it has taken eight years to undo the carnage.
A man named Junius Peake was an economics professor at the University of Northern Colorado, who due to his parody-inviting name and undoubtedly also the character traits that he was soon to display so prominently, found himself being lampooned in a student satire blog called “The Howling Pig.” The editor-in-chief of the blog was facetiously identified in the newsletter as the obviously fictional “Junius Puke,” who was portrayed with an outrageous photograph of Professor Peake altered to include sunglasses, a different nose, a Hitler-esque mustache, and, on occasion, Kiss make-up and a Gene Simmons tongue. “Junius Puke” wrote prose like this:
“This will be a regular bitch sheet that will speak truth to power, obscenities to clergy, and advice to all the stoners sitting around watching Scooby Doo. This will be a forum for the pissed off and disenfranchised in Northern Colorado, basically everybody. I made it to where I am through hard work, luck, and connections, all without a college degree. Dissatisfaction with a cushy do-nothing ornamental position led me to form this subversive little paper. I don’t normally care much about the question of daycare since my kids are grown and other people’s children give me the willies.”
It is fair to say that absolutely nobody who knew who the model for Puke was could think that the real author was Peake, and those who never heard of Peake could ever attribute Puke’s blatherings to him. Nevertheless, Prof. Peake did not appreciate the joke, and claiming that he had been criminally defamed under Colorado’s libel law, demanded that the police intervene.
Colorado’s libel law, like some others around the country, is shockingly over-broad and thus unconstitutional. It declares that is a criminal offense to “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.”
By this standard, Anthony Weiner would have a valid criminal complaint against every political columnist and comedian in the country: notice that truth is not a defense under the statute. Never mind, though; the statute wasn’t applicable anyway. The Puke character was a parody; the content of the blog was satire. There was no offense. This is protected speech under standards that have been well-established for centuries.
But the Chief Deputy District Attorney for the Nineteenth Judicial District, Susan Knox, had apparently forgotten her First and Fourth Amendment training, so she signed off on a search warrant so police could raid and search the home where the student author of the blog, Thomas Mink, lived with his mother. The police seized Mink’s personal computer.
Mink sued Knox, arguing that she had approved an illegal search of his home in violation of the Fourth Amendment’s requirement that searches be supported by probable cause. Federal District Judge Lewis T. Babcock dismissed the suit and held that Knox was entitled to qualified immunity, which protects government officials from suits for monetary damages even if their acts violate an individual’s constitutional rights, as long as their discretionary conduct is not so obviously unconstitutional that no reasonable official could believe otherwise. This principle is designed to ensure that competent and zealous government officials can do their jobs without having to fear retributive lawsuits, while still protecting the public from reckless and unethical officials who abuse their power and citizens’ rights.
Like Susan Knox.
The Tenth Circuit overruled Judge Babcock and reversed his dismissal of Mink’s suit, holding that Knox should have known she was violating the Fourth Amendment by seeking a search warrant without legitimate probable cause. The Court held on appeal that the parody newsletter was protected by the First Amendment and could not form the basis of criminal libel, saying…
“no reasonable reader would believe that the statements in that context were said by Professor Peake in the guise of Junius Puke, nor would any reasonable person believe that they were statements of fact as opposed to hyperbole or parody.”
This time, given a second chance to get the case right, Judge Babcock considered the facts and ruled in favor of Thomas Mink in his lawsuit, and Knox is now personally liable for her unconstitutional actions. What damages she will have to pay to Mink will be determined in an upcoming hearing.
Presumably she will not face disciplinary action from the Colorado bar. Colorado’s legal ethics rule 3.8 declares it unethical for a prosecutor to bring charges without good cause, but Mink was never charged. Lawyers have to be spectacularly incompetent before it will be regarded as an ethical violation, but one has to wonder: is a prosecutor who engages in conduct that no reasonable official could justify sufficiently trustworthy and fit for the continued practice of law?
Meanwhile, Colorado’s unconstitutional libel law is still on the books, leaving it to ethical Colorado legislators to amend or repeal it before it does any more damage. And as for the self-important jerk who sparked this fiasco, Junius Peake, he is no longer on the faculty of the University of Northern Colorado. Ethics Alarms hopes that he has spent the last eight years developing a sense of humor, but if he has not, a name change might be in order.
And we all know what it would be.
[Thanks to Ken at Popehat for following this story.]