http://www.coloradoan.com/apps/pbcs.dll/article?AID=2008811300338

Criminal libel case centers on Web post
DA charges man in alleged insults of ex-girlfriend
BY DOUGLAS CROWL • LOVELAND CONNECTION • NOVEMBER 30, 2008

Web chatters firing off insults about people on community Web sites
might think twice next time they press the post button.

Larimer County District Attorney Larry Abrahamson charged a 40-year-
old Loveland man last month with two counts of criminal libel for
posts he allegedly made about his former girlfriend and her attorney
on Craigslist.com's "Rants and Rave" section.

Criminal libel is a rarely used, 1880s-era law aimed at publishing
statements meant to ridicule or inspire public hatred.

It's a Class 6 felony and carries a punishment of up to 18 months in
prison.

"It's been a number of years since I recall seeing it," Abrahamson
said. "It's not a charge you see a lot of."

The case in Loveland began when a woman approached the Loveland
Police Department in December 2007 about multiple postings made about
her between November and December 2007.

At least one post suggests that she traded sexual acts for legal
services from her attorney, according to court records.

There's also mention about a child services visit made because of an
injury found on her child.

Police obtained search warrants for records from Craigslist.com and
other Web sites and identified J.P. Weichel as the suspect, the
former boyfriend of the woman, who shares a child with her.

In August, detectives confronted Weichel at his workplace, where
police said he admitted to the postings because he was "just
venting," according to the court file.

Weichel did not comment to Loveland Connection about the case.

Usually A Civil Case

Libel is commonly seen as a civil case, and attorneys working for the
Colorado Press Association have argued to federal district courts
that the state's criminal libel charge is not constitutional, said
attorney Steve Zansberg, who specializes in First Amendment law for
Levine Sullivan Koch & Schulz law firm in Denver.

Zansberg argued that the criminal law is easier to prove than seeking
damages in a civil case because defendants must prove their innocence
by showing that the statements are true.

In civil cases, the victim must show damages have occurred, which
Zansberg said is more difficult to prove and puts the burden of proof
on the plaintiff, not the defendant.

Is Law Outdated?

Zansberg said the criminal law is outdated; it was written in the
1800s with other laws meant to preserve the public peace, such as
outlawing dueling and unlawful discarding of an ice box, according to
the state statute book.

The criminal law also is unclear about stating opinions and is
written so dead people can be victims of criminal libel, Zansberg said.

But Abrahamson disagreed with claims that the law is unconstitutional
based on the burden of proof.

He said the prosecutor's burden of proof is beyond a reason of doubt,
which he said is a much higher standard of proof than proving damages.

Criminal libel has come up in recent years in Colorado, as well.

A man in Durango recently was prosecuted on several counts of
criminal libel, and a man in Pueblo faces a criminal libel charge
relative to a doctored photo of a woman that prosecutors believe was
disseminated to ridicule the woman, according to reports.

Greeley Case

Possibly the best-known criminal libel case in Colorado came out of
Greeley beginning in 2003, when the Weld County District Attorney's
Office pursued criminal libel charges against Thomas Mink.

Mink published an Internet-based publication called Howling Pig,
which was critical of the University of Northern Colorado.

The American Civil Liberties Union of Colorado filed suit in a
federal district court to stop the investigation, which also sparked
the movement from the Colorado Press Association to prove the
criminal libel law unconstitutional.

Those efforts fell apart when the Weld County District Attorney's
Office dropped the case, Zansberg said.

Still, Zansberg said, prosecutors seeking criminal libel cases could
have a "chilling" effect on speech in Colorado, particularly over the
Internet, where there's ample opportunity to voice opinions.

Whether that means more criminal libel cases in the future,
Abrahamson said, it's difficult to know.

It's really up to the police departments to pursue the cases, but
with greater opportunity to commit the crime, more cases could arise,
Abrahamson said.

"It's hard to say. We have to take a look at what's out there.
Obviously, it would have to be brought to our attention to look at,"
he said. "But I'm not saying at this point that it opens Pandora's
Box on filing libel charges."

Weichel's libel case continues in court next month.


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