A man was arrested in Pueblo the other day and charged with criminal libel, apparently for using imaging software to graft the face of one woman onto the bodies of other women, then publishing them in some fashion on the Internet or via e-mail, and thereby ridiculing her and impeaching her reputation, according to Pueblo County District Attorney Bill Thiebaut, as reported in the Pueblo Chieftain on Nov. 3.
Regardless of the particulars of this case, it brings to light one of the worst laws on the books of any state in the nation, a law just about everyone in Colorado likely has violated at one time or another.
Colorado's Criminal Libel statute reads:
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.
Note that truth is not a defense (contrary to all U.S. Supreme Court case law on libel) if you blacken the memory of a dead person or expose the natural defects of the living.
Though the news stories about the Pueblo man say it is rare for anyone to be prosecuted under this law, at least three people have been arrested under it since 2004. In one case, the charges were dropped. In another, the man accused was convicted. The outcome of this latest case may take awhile.
But whatever the outcome, it raises questions about this law, which may be unconstitutional on its face because Section 2 bars truth as a defense in certain instances and because the language used in Section 1 is vague and overly broad. For example, try to draw the line with regard to "tending to blacken" -- it can't be done, and the law does not specify who is to make that judgment and according to what standard.
In addition, the law has no provision allowing for one section to be held unconstitutional without affecting the entire statute. If either Section 1 or Section 2 is unconstitutional, the whole law is.
So, what do you think?
Should people be convicted of felonies and sent to prison for knowingly publishing in some way false and defamatory material about others, or should the remedy be the traditional civil lawsuit?
How about when publishing the truth about dead people or living people with natural defects -- or should truth be the absolute defense it has always been in civil libel case law within the United States?
As you ponder your response, ask yourself if you have you ever published (by letter, e-mail, photo, etc.) something that could be considered a violation of the law?
Have a nice day!