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February 15, 2012 12:33 AM UTC

GOP's Greg Brophy, ACLU Team Up To Repeal Criminal Libel

  • by: Colorado Pols

AP on the passage of Senate Bill 12-102 today:

Colorado senators gave the first approval to a bill that would repeal the state’s criminal libel law…

Libel is commonly a civil matter and that option would still exist if the bill passes.

The bill is supported by the American Civil Liberties Union, the Colorado Press Association, and the Criminal Defense Bar.

Westword’s Michael Roberts earlier today:

​”I thought we lived in a country where we had free speech,” says Brophy, whose measure is scheduled to be heard by the Senate judiciary committee this morning. “I understand that if you say something about somebody that harms them, they have the right to sue in for damages in civil court. But I didn’t think the heavy hand of government could come in and throw you in prison for something you’d written. And I think that’s dangerous.”

Use of the criminal-libel law, which ACLU of Colorado legal director Mark Silverstein has called a “relic of the 19th century,” is rare. Yet its continued existence on the Colorado books “begs for the argument of unequal application of the law,” Brophy believes. “So this kid in Greeley gets a charge against him for something he did, but somebody in another town doesn’t. That’s not supposed to happen. If you commit a crime, it’s serious, and you should be prosecuted for it.”

Moreover, he goes on, “this is a felony. We’re not talking about speeding here. This is treated as a class-six felony, which means if you’re guilty, you go to prison.”

There are few members of the Colorado Senate that we’ve been harder on in recent years than Sen. Greg Brophy, from his perennial anti-fictitious-gun-grab bills, to leading the charge to pass needless drug testing for public assistance. It’s safe to say that any time Sen. Brophy sees a Google Alert on his name that points here, he’s not expecting particularly kind words.

But in this case, our praise for arch-conservative Sen. Brophy teaming with no less than the American Civil Liberties Union itself, not to mention his Democratic Senate colleagues, to repeal a statute so plainly harmful to free speech is very much authentic.


15 thoughts on “GOP’s Greg Brophy, ACLU Team Up To Repeal Criminal Libel

  1. This is a good bill that deserves to be passed.  It is good for Colorado, and improves the human rights record of the United States as well, in the process.

    I’m glad to see it has bipartisan suppport.

    Lurking in the background is another statute the criminalizes certain false statements in political campaign ads, but it is best not to muddy the issues now and to fix the broader criminal libel statute’s flaws before moving on to the narrower election related speech law which would be more narrowly interpreted given constitutional considerations, if it was invoked.

    Parts of Colorado’s criminal libel statute (which provides that certain disparaging truthful statements regarding the dead and of people such as the feeble minded are crimes) have already been invalidated, but this leaves the threat of criminal prosecutions hanging over a lot of speech under current Colorado law.  

  2. But, because I’m just that kind of guy, I’ll wonder if he’s going to have the chutzpah to attack the ACLU for political points in the future, now that he’s worked with them on an actual legislative matter.

    1. Why would you expect anything different? Likewise, if the ACLU decides to criticize Brophy, let’s hope they don’t pull any punches merely because they were allies on this issue.

  3. Comes from one of the most conservative districts of the state —  I should know, I grew up there and still own a farm in Phillips County.  But I remember Chris Romer describing him as very intelligent and there is a lot more to him than meets the eye.

      He drives a Prius.  He’s an avid cyclist.  And if warring against imaginary anti-gun bills gives him credibility with the uber right, he does occasionally put that to use.

  4. I believe (and someone correct me if I’m wrong) the original intent of the criminal libel law was to protect a business from someone (a competitor most likely) from spreading false and malicious information. As an example, a fruit grower who might spread a rumor about another fruit grower that their product was unsafe to eat.

    Several years ago I was threatened with criminal libel by a developer when I published a website detailing the developer’s nefarious business record which included criminal financial fraud (all of it fully documented). I replied to their attorney to go ahead and have a DA serve me with the charging documents. Of course it never  happened,  but the mere fact they used that statue to try to intimidate me is reason enough to repeal it.


    1. was actually to replace the practice of dueling– if you look at the printed statutes, just above criminal libel is the repealed law governing dueling. The law itself dates from the 1880s.

      There are other disparagement laws that have been enacted at the request of business lobbies, but I believe that they are civil statutes.

  5. Sen. Brophy really does deserve credit on this one.  Criminalizing speech is abhorrent to the 1st Amendment.  He is bright and his analysis on why he was bringing this was spot on.  Kudos to the AGs too for standing up for the constitution on this one.  

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