Office of Sen.

Mike Johnston
Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM

SB 12-102 Repeal Crime of Criminal Libel Sen. Brophy Staff Name: Kelson Bohnet What the Bill Does: Libel is a crime or civil cause of action involving written defamation. When a person publishes a false or malicious statement that impugns another, he or she commits libel. Under current Colorado law, libel is a criminal offense and classified as a class 6 felony. Specifically, the law makes it criminal to blacken the memory of the dead or impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive. A defendant can raise the defense of truthfulness, except in situations where the statement was directed toward the dead or exposed a natural defect of the living.1 SB 12-102 would completely repeal the crime of libel in Colorado. Therefore, no criminal prosecution would be possible based on the publishing of a statement implicated by the current law. The bill does not alter civil libel actions in any way. Colorado Context: Colorados criminal libel statute dates back to 1868, and the state has seen very few libel prosecutions in recent times. In 2004, blogger who criticized a University of Northern Colorado professor through satire filed suit in federal court to challenge the libel law; the Tenth Circuit Court of Appeals eventually dismissed his case and allowed the law to remain in force.2 More recently, in 2008, a Fort Collins man was prosecuted for posting inflammatory statements regarding his ex-girlfriend on Craigslist.com.3 Most sources agree that the statute is rarely used.4 In total, Colorado prosecutors have charged seven people with criminal libel during the last two years.5

1 2

Colo. Rev. Stat. 18-13-105 (2012). Univ. of Minn., Tenth Circuit Declines to Strike Down Colorados Criminal Libel Law After Finding Students Challenge Moot (last visited Feb. 9, 2011), http://www.silha.umn.edu/news/spring2007.php?entry=199117. 3 Nicholas Riccardi, Criminal Charge Filed in Libel Case, L.A. TIMES (Dec. 4, 2008), http://articles.latimes. com/2008/dec/04/nation/na-craigslist-libel4. 4 See, e.g., id. 5 Fiscal Note, S.B. 12-102, 68th Gen. Assemb., Reg. Sess. (Colo. 2012), available at http://www.leg.state.co.us/ clics/clics2012a/csl.nsf/fsbillcont3/137EB3140E0AD459872579880083814D?Open&file=SB102_00.pdf.

DRAFT 2/12/2012 4:36 PM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

In its annual statistical reports, the Colorado Judiciary does not report civil libel suits by category. The Other category, where libel suits would presumably be classified account for less than one percent of state civil filings.6 National Context: The majority of states do not criminalize libel. As of 2008, only 17 states or territories had criminal libel provisions of some kind.7 Several of those states have libel laws that only criminalize student libel directed towards teachers or other education personnel.8 Notably, in 2007, Utah repealed its libel law but preserved its defamation statute to comply with state court rulings.9 Bill Provisions: Repeals Colo. Rev. Stat. 18-13-105, Colorados criminal libel law Fiscal Impact: SB 12-102 has the potential to decrease state revenue through a decrease in cash funds. Because criminal libel is a class 6 felony, it can be punished with a fine of $1,000 to $100,000. However, due to sentencing discretion and the rarity of libel prosecutions, the annual revenue reduction is so small as to be non-calculable.10

COLO. STATE JUDICIAL BRANCH, CIVIL FILINGS BY TYPE OF CASE FOR FY 2011 (2012), www.courts.state.co.us/userfiles/ file/Administration/Planning_and_Analysis/Annual_Statistical_Reports/2011/District%20Court/Table16.pdf. 7 Riccardi, supra note 3. 8 ORG. FOR SECUTIRY AND COOP. IN EUROPE, LIBEL AND INSULT LAWS 171 (2005), www.osce.org/fom/41958. 9 REPORTERS COMM. FOR FREEDOM OF THE PRESS, BILL REPEALS UNCONSTITUTIONAL CRIMINAL LIBEL, SLANDER LAWS (2007), http://www.rcfp.org/node/95093. 10 Fiscal Note, S.B. 12-102, 68th Gen. Assemb., Reg. Sess. (Colo. 2012), available at http://www.leg.state.co.us/ clics/clics2012a/csl.nsf/fsbillcont3/137EB3140E0AD459872579880083814D?Open&file=SB102_00.pdf.

DRAFT 2/12/2012 4:36 PM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.