People v. Ryan

is not the case supra. Such People,

here. Alexis, at 1031.

People v. appeals the court of agree

I judgment Alexis’ of convic-

Michael Dwain felony murder should

tion for the crime reversed, agree I with Justice Erick- but opinion majority of this court

son’s for the

that the convictions for second defendant’s

degree burglary, aggravated robbery and Accordingly,

theft should be reinstated. I majority opinion part

concur with the part.

and dissent in MULLARKEY, JJ.,

QUINN join

this concurrence and dissent. Colorado, PEOPLE of State

Plaintiff-Appellant, RYAN,

Dennis Edward

Defendant-Appellee.

No. 89SA497. Colorado,

Supreme Court of

En Banc.

March

(1) person A knowingly pub- who shall disseminate, lish or either written in- strument, like, sign, pictures, or the object tending to statement or blacken dead, memory of one who is or to virtue, impeach honesty, integrity, reputation expose the natural defects alive, thereby of one who is to ex- hatred, pose contempt, him to ridicule, commits criminal libel. (2) It shall be an affirmative defense true, except that the was li- tending memory bels to blacken the tending expose the dead and libels living. natural defects of the (3) felony.1 Criminal libel is a class 5 charged The defendant was with criminal mailing copies libel for of a fictitious businesses, poster “Wanted” to several bars, park and a local trailer Fort Col- lins, poster, pictured Colorado. The victim, and named the libel stated that the “fraud, conspiricy victim was wanted for fraud, to commit various flimflam [sic] schemes, abuse, spouse abuse-neglect, child abuse, elderly, prostitu- sex abuse of the VanMeveren, Atty., Stuart A. Dist. Lor- tion, assault, larceny, services, theft of Schall, Atty., en B. Dist. K. Asst. Steven wage chiseling, breach of contract.” [and] Carman, Sharpe Deputy and Jolene L. Dist. poster The further stated that the victim Collins, Attys., plaintiff-appellant. Fort for “frequents company local bars in of men Michaels, P.C., Frey, Lach & P. John longest contraband,” hair and/or best P.C., Hale, Williams, Frey, & Mi- Smith was “86’d from bars in two states for soli- Collins, Liggett, chael D. Fort for defen- customers,” citing multiple male “often dant-appellee. worker’, masquerades ‘peace day care cook, worker, waitress, dancer,” “has har- delivered the Justice VOLLACK VD,” bored various forms of and is at Opinion of the Court. “high addition, risk AIDS.” In poster age, color, set forth the victim’s hair People appeal the trial court’s dis- color, weight, height, eye date, birth against the information filed missal of residence, $3,000 defendant, and offered a Ryan, reward for ruling Dennis and its statute, leading “information to the criminal or civil Colorado’s criminal libel 18-13-105, prosecution” Finally, of the victim. facially 8B C.R.S. § poster requested inquiries unconstitutional. We reverse and infor- remand a post mation be sent to office box in with instructions. Iowa City, Iowa.

I. The victim told Murray Officer Kenneth 13, 1989, April Department On the defendant was from the Fort Collins Police charged previously with criminal violation of that she had dated the defen- 18-13-105, dant, City, section 8B C.R.S. That who resided in Iowa Iowa. She ended, provides: relationship section that after their stated 18-13-105, (3) July felony. 1. Effective subsection Ch. sec. amended, changing criminal libel to a class 6 CoIo.Sess.Laws Thus, parties.4 her with hate thе trial court inundated invalidated the defendant pair mailed a of the victim’s the entire statute on its face as He also unconstitu- mail. her, booby-trapped tionally but had overbroad. eyeglasses apparent attempt harm in an glasses preliminary hearing on At the victim. II. 6, 1989, Murray Officer testified September appeal, the On defendant contends that poster post the the office box on that ruling the trial in court was correct that testi- to the defendant. He further listed section of an 18-13-105’s lack “actual mal- indicating no that fied that records existed ice” the standard renders statute over- any illegal in had been involved the victim broad, thereby requiring of invalidation the activities. applications.5 entire in all of its statute preliminary the the At conclusion of disagree. We hearing, the trial court bound the case over upon finding to probable for trial cause A. that had believe the defendant committed category first the We consider of Thereafter, charged. the defen the crime protected, expression that is as as well that in pretrial to dant filed motion dismiss unprotected, by which is the first amend contending the proceeding, that criminal Originally, ment in area of the libel. libel The tri statute was unconstitutional. against anyone was believed to be outside motion, grаnted the al court defendant’s scope protection. the first of amendment finding that the statute was unconstitution Supreme The United States Court enunciat an "actual ally overbroad because it lacked long-held Chaplinsky ed this in view v. requirement malice” for false statements 568, Hampshire, 315 State New U.S. 62 of public stan about officials. Without this 766, S.Ct. 86 L.Ed. 1031 when it dard, could of the statute inhibit criticism stated: officials, public protected expres which is right is that well understood the of [I]t sion under the first and fourteenth amend free is at all not absolute times to ments the United States Constitution2 and under all There II, 10, circumstances. are the and article section of Colоrado narrowly certain and well-defined limited The trial stat Constitution.3 court further speech, prevention classes the of and although ap ed that the statute could be punishment of which has never plied constitutionally been to the defendant's conduct, thought prob- any the to raise Constitutional defendant nevertheless had standing lem. These include the challenge to section 18-13-105’s lewd ob- scene, libelous, profane, to facial ‍​​​​‌​‌‌​‌‌‌‌​​‌‌‌​‌​‌‌​​​‌‌‌​‌​‌​​​‌​‌‌‌​‌​​‌‌‌‍overbreadth because it threatened the the the expression by insulting “fighting” chill first amendment third words—those cases, may 2. the In Amendment I to United States Constitu- first amendment defendant 4. provides pertinent part: "Congress challenge shall tion a statute on its face when it threatens abridging no law ... the of make speech, freedom parties engaging protected to deter third from press_” guarantee or of the This expression, though even the statute could be applies through to states the the fourteenth See, applied constitutionally the defendant. Douglas City amendment the v. of Constitution. Arcades, Inc., e.g., Spokane 472 Brockett U.S. Jeannette, 162, 877, 880, U.S. 319 2794, 2801, of 87 S.Ct. L.Ed.2d L.Ed. 1324 Oklahoma, (1985); Broadrick v. (1973); 37 L.Ed.2d 830 II, 3. the Article of Colorado Constitution § Hammes, City Englewood v. of states: decline, however, (Colo. 1983). We to address passed impairing No law be free- shall the standing the issue of defеndant’s because speech; every person of dom shall be free partial § our invalidation of 18-13-105 renders publish speak, on write or whatever he will II, C, infra, part that issue moot. See section of any subject, being responsible of for all abuse opinion. this liberty; prosecutions that and in all suits and may given for libel the truth thereof concedes, however, evidence, The jury, defendant that and the under the direction court, applies is 18-13-105 constitutional his shall determine law and conduct. fact. inju- inflict very application utterance later extended the by their Court of the New “actual malice” breach York Times ry or incite an immediаte tend to rule to cases where criminal were sanctions It well observed peace. has been imposed for criticism of the official conduct are such no essential utterances officials. Garrison State ideas, exposition of and are part any Louisiana, step value slight of such social as a (1964). Despite may be de- truth that benefit separate served civil crimi- interests clearly outweighed by rived from them statutes, nal libel at least historically,8 the morality. social interest in order and Court concluded that the same constitution- (emphasis 768-69 Id. at applied al limitations where defamation of added). rejeсted Court officials was concerned. Id. beyond view that all libel was first amend 74, Today, 85 at 215. in S.Ct. civil protection began to ment when it define the brought by public criminal libel actions offi- constitutional limitations of state libel laws cials, defense, only truth is an absolute and they defamatory pertained as to state false statements made with “actual malice” In public ments about officials. New York are subject to sanctions. See id. at 85 Sullivan, Co. 376 Times v. U.S. 84 S.Ct. at 215. S.Ct. 11 L.Ed.2d the Court 686 Garrison, however, In specifi the Court defamatory the rule that a established cally development noted that its of the New public false about statement official was York in way impaсted Times rule no the damages not actionable for unless it was area purely private n. libels. Id. at 72 is, with made “actual malice”—that unless at Following 85 S.Ct. 215 n. 8. New York defamatory the defendant knew that the Garrison, Times and the Court rec indeed false, statement was or acted in reckless ognized that the first justifica amendment disregard 279-80, truth. Id. at the 84 tion the for “actual malice” rule re was at S.Ct. 725-26.6 Its conviction that duced when a defamer private libeled a public about affairs was essential to the person. Welch, Inc., Gertz Robert process democratic motivated the New 418 41 U.S. 94 S.Ct. York Times Court to a rule formulate (1974), the Court to refused extend the “profound the reflected national New York “actual Times malice” standard principle commitment the to debate on to media of a private defamation individual uninhibited, public robust, issues should public on a matter of Specifically, concern. wide-open, may and that it well include individuals, private the Court held that vehement, caustic, unpleas and sometimes officials, opposed public to prove need not government antly sharp attacks on malice” damages, “actual to recover actual public Id. officials.” at 84 S.Ct. at although “actual malice” must be to shown presumed 721.7 punitive recover damages. law, sought revenge 6. The New York Times "actual malice" standard on the At Iibeler. common malice, distinguishable defense, from common law truth was no for the truth even was Tribe, spite which meant or ill L. will. Ameri- likely more peace. to cause breaches of the 12-12, (2d can Constitutional Law n. 864 21 Kelly, Speech, Criminal Libel and Free 6 Kan.L. 1988). ed. (1958). Rev. See also Bearman v. Peo- 486, 491-92, ple, (1932) Colo. privilege ap- 7. New York Times later was (“[T]he publication the law makes of a libel plied publications public figures to about so that crime, injury reputation the not because those who thrust themselves into the are- individual, but because such defamatory nа had no for redress false state- injuriously peace good tends to affect proof ments without of actual malice. See Cur- society.”). order of While Butts, criminal was Publishing action tis Co. v. S.Ct. preserve peace, used to civil action 18 L.Ed.2d was remedy, popular today, more as it is because it 8. pun- The historical rationale for the criminal provided compensation damage repu- for to the libel, today, ishment of which is still used person Kelly, supra, tation of the defamed. penalized by that libels could be the state be- they cause tended to create breaches of the peace when victim or his friends Rather, Instеad, m a community. 348-49, the victim’s at 3011-12. Id. context, restrictive given purely the latitude define a less private were the states may standard of to meet appropriate culpability be used for themselves standard injures controlling a media defendant liability legitimate interest state’s person’s reputation defam private injuri- constitutionally unprotected conduct falsehoods, liability long as is not atory Thus, so section 18-13-105 ous to its citizens. 345-47, Id. at imposed without fault. private constitutionally to applied can be reasoned that at 3009-10. The Court S.Ct. dis- “knowingly publish or defamers who more vulnerable to private individuals were tend- object statement or sеminate ... opportunities their limited injury given integrity, ing impeach honesty, ... Moreover, false statements. counteract virtue, reputation” private of a individu- officials, persons private unlike do 18-13-105(1). al. § voluntarily expose to the themselves not defamatory injury risk of from increased B. more and are therefore deserv falsehoods recovery. ing of Id. at conten- We next consider defendant’s In Dun 3009-10. & Bradstreet Green invali- tion that section 18-13-105 must be Builders, 472 moss entirety dated its because it criminalizes 2939, ad 86 L.Ed.2d 593 Court pub- of constitutionally protected criticism applied whether rule dressed Gertz concern, of public lic on matters officials defamatory false statement did when the constitutionally unprotected well as libel in public of concern. not involve matter context, private engaged such as that that, light held in of the “re The Court by in the defendant. speech of on duced constitutional value” matters, puni purely private presumed facially A statute is overbroad if damages may awarded for such be tive sweeps constitutionally it within its reach statements, showing even of “ac absent unprotected, protected, as well as activities. 761, Id. 105 tual malice.” S.Ct. at 394, 397, People, Bolles 189 Colo. 541 v. that recognized purely has thus The Court 80, (1975). facially A P.2d 82 overbroad private of less first аmend defamation is struck may statute be down as invalid little do ment concern because it “has when it to deter from threatens individuals self-governing- political with the ends of by engaging protected in activities that are imposition liability pri society. The of In recognition the first amendment. abridge free vate defamation does not harmful, controlling in con state’s interest public other freedom dom of conduct, stitutionally unprotected the com protected by the Amendment.” New First plete overly invalidation of broad stat Times, 301-02, 84 376 S.Ct. at York U.S. "strong ute is medicine” to be considered J., (Goldberg, concurring). 737-38 cautiously employed “only as a last Oklahoma, v. 413 resort.” Broadrick U.S. with the latitude that accordance 2908, 601, 613, 2916, 37 L.Ed.2d 93 S.Ct. upon bestowed the states the area Gertz (1973); City Lounge, 830 Marco Inc. v. defamation, this court has held private (Colo. 625 985 Heights, Federal P.2d context, that, private purely in a the bal 1981). Hence, scrutiny nec overbreadth is be struck favor of the ance should essarily by rule that a law controlled private in protecting interest its citi state’s on should voided its face unless its not be injury by statements. zens from false See constitutionally protect “chilling effect” on Metz, 195 P.2d Colo. 579 Rowe v. See, Brock activity e.g., ed is substantial. Applying this rationale to 85 Arcades, Inc., Spokane 472 ett v. U.S. 18-13-105, inapрropriate re it is section 2794, 2801, L.Ed.2d 394 S.Ct. 86 quire defamatory false statements Ferber, (1985); York v. 458 U.S. New with “actual malice” in situa must made 3348, 3362, case, tions, present as the where one such Broadrick, (1982); 93 S.Ct. U.S. at private defamatory person disseminates substantially If a statute not private at 2917. about another individual statements overbroad, may might then whatever overbreadth the statute be limited. See Houston case-by-case Hill, exist should be resolved on a Broadrick, (1987).10

basis. 2917-18; May People, recognize We that section 18-13-105’s (Colo.1981). lack of an “actual malice” standard threat- ens to deter a substantial amount of ex- rare, however, It is that a substan pressiоn protected by the first amendment. tially overbroad statute will be invalidated find, however, We the determinate partial in toto when invalidation rid will developed by rules the United States Su- infirmity the statute of the constitutional preme Court in the area of libel allow us to Brockett, of overbreadth. See U.S. at through partial save the statute invalida- 504, 105 S.Ct. at 2802. The Court acknowl tion. edged practice this Broadrick when ‍​​​​‌​‌‌​‌‌‌‌​​‌‌‌​‌​‌‌​​​‌‌‌​‌​‌​​​‌​‌‌‌​‌​​‌‌‌‍stated that the overly enforcement of an C. totally

broad statute “is forbidden until and limiting unless a partial construction or Supreme From the United States invalidation so narrows it as to pronouncements remove the Court’s concerning libel seeming threat or deterrence to constitu we precise category protected discern a tionally protected expression.” Broadrick, conduct that falls legitimate outside of the 93 S.Ct. at sweep 2916.9 More of section 18-13-105. That category over, “long respected Court has consists of libelous statements about Supreme state ability Courts’ to narrow public figures officials or involving matters overbroad statutes so as to limit the stat concern. category This of consti scope unprotected ute’s conduct.” tutionally protected Os gives conduct us a —Ohio, -, borne v. clear line distinguish which to the stat (1990). 109 L.Ed.2d 98 See also ute’s constitutional and ap unconstitutional Ferber, 458 n. plications. 769 102 S.Ct. We therefore hold that section (when n. 24 dealing 3361 with a statute 18-13-105 is invalid only insofar as it overbroad, challenged as state courts are reaches constitutionally protected state free to construe the statute to avoid consti- public ments about public fig officials or problems tutional subject when it is ato ures on public matters of concern. Our limiting construction). key saving partial invalidation, however, to only affects an overbroad statute from its application (1) constitutional the of subsection of the stat infirmities is to discover the core of consti- ute. Truth shall remain an affirmative de tutionally unprotected expression to which pursuant 18-13-105(2)11 fense to section statutes, 9. On facial invalidation of overbroad genuinely ban on material that reaches obscene Professor Tribe states: material) Secretary Maryland with State of of Co., plausible challenge 947, 967-68, Joseph A H. to law as void Munson 467 U.S. 104 for (1) 2852-53, only overbreadth (1984) (the can made when the S.Ct. 81 L.Ed.2d 786 protected activity significant part is a Court invalidated in toto an overbroad law that (2) target, law’s tory way there exists no satisfac- prohibited the solicitation of contributions severing of the law’s constitutional organizations charitablе that did not use a cer- applications from its unconstitutional so as to percentage receipts tain of their for charitable clearly single excise the step latter in a from purposes; the statute’s fatal flaw was that it the law's reach. unnecessary created chilling risk of free Tribe, 12-27, supra (empha- L. § note at 1022 speech Note, applications). in all of its See also original). sis in Doctrine, The First Amendment Overbreadth (1970) (where per- Harv.L.Rev. a rule 10. Facial invalidation remains a viable solution matter, taining particular subject ato Court, such as to the but its use has been restricted to defamation, clearly prоtected activity, "defines those situations where it had no choice but to might it be used aas rule of excision rather than inability strike the law down for its to find a trigger holding invalidity”). for a logical Tribe, of facial dividing supra line. See L. note 12-28, Brockett, Compare 1028-29. 504-05, (the 18-13-105(2) only U.S. at Court 11.Section disallows the truth de- partially obscenity invalidated tending a state’s fense memory statute for "libels to blacken the by severing constitutionally protect- the ban on tending expose of the dead and libels to the ed materials that incite living.” ''normal" lust from the natural defects of the The constitution- im object tending ... statement or II, of the Colorado section and articlе virtue, integrity, rep or peach honesty, the Constitution.12 Maj. op. private utation’ of a individual.” the extent remains valid to The statute conclu majority at 939. The reaches this under the attacks penalizes libelous by drawing primarily on Dun & Brad sion case, private person where one facts of this Inc., Builders, street, Inc. v. Greenmoss another reputation disparaged has 749, 105 judg- Accordingly, private individual. Powell, J., (1985) announcing (opinion of is reversed and of the trial court ment Metz, court), and judgment of Rowe rein- instructions to is remanded with case (1978), of which 579 P.2d 83 both Colo. against the defendant. charge state civil claims for defamation involved by private person on a matter of brought J., QUINN, dissents. acknowledge I private concern. ROVIRA, C.J., participate. concern, does not private the free purely matters of speech protections of the United States dissenting: QUINN Justice stringent constitutions are less Colorado 18-13-105, 8B C.R.S. Section involving a in the mat than case or dissemina- criminalizes Bradstreet, public ter of concern. Dun & “impeach a statement that tends tion of 105 S.Ct. at 2945-46. virtue, reputation honesty, integrity, case, however, with the We deal in this one who is expose the natural defects of statutory of a crime and not with definition alive, expose person] thereby [that damages recovery of civil conditions hatred, I contemрt, ridicule.” alleged defamatory for an statement. majority’s disagreement have no considering a criminal statute whether statute to the partial invalidation of this overbroad, task constitutionally a court’s attempts to criminalize the extent that it “whether the enactment is to determine public figures public officials and libel of of constitu reaches a substantial amount The instant concern. on matters tionally protected Village conduct.” the libel of a prosecution does not involve Flipside, v. The Estates Hoff Hoffman public figure, but rather public official or a Estates, Inc., man alleged private libel of a is based on the private essentially a matter of person on statutory terminology ambiguous Because accept I am unable to concern. Because “ far wider of the causes citizens to ‘steer of section 18- majority’s construction than if the boundaries unlawful zone’ ... libel of a as related to the criminal 13-105 clearly forbidden areas were of person, I dissent. private 360, Bullitt, marked,” Baggett v. 377 U.S. libel, the term “actual In the context of 1323, 1316, 84 S.Ct. “with making a statement malice” means (1964) Randall, Speiser (quoting v. or with reck knowledge 1332, 1342, that it was false 2 L.Ed.2d 78 S.Ct. disregard it was false or less of whether (1958), statutory vagueness of Sullivan, analysis. not.” New York Times Co. enactment affeсts overbreadth Estates, 84 S.Ct. 376 U.S. at n. Hoffman majority rejects The that a n. 6. The mere fact damages claim that the lack of civil private person may the defendant’s recover requirement proof in section 18- of actual malice “actual malice” for without view, basis, which to statutory proscription my no on 13-105 renders the affords concludes, In ‍​​​​‌​‌‌​‌‌‌‌​​‌‌‌​‌​‌‌​​​‌‌‌​‌​‌​​​‌​‌‌‌​‌​​‌‌‌‍rationale for criminal libel. overbroad and construct a of criminal libel Louisiana, ap instead, 18-13-105 can be that “section Garrison for exam defamers 13 L.Ed.2d constitutionally private plied Supreme re States Court ple, ... the United ‘knowingly publish or disseminate who supra note 3. exceptions defense 12. See ality to the truth of these appeal. We therefore de- not raised on were time. that issue at this cline to address Garrison, the falsity versed the conviction of Dis of that crime the of the statement Parish, Louisiana, Attorney trict of Orleans knowledge falsity, mini- of its or at a disparaging on his for criminal libel based disregard falsity, mum reckless of truth or eight press remarks at a conference that inexorably will induce silence as an alterna- judges on the criminal court of the Parish avoiding entrapment tive to in the amor- inefficient, lazy, were had taken excessive phous criminality and uncertain zone of vacations, hampered and had his efforts to created the statute. See Tollett v. prose enforce the vice laws. Garrison was States, (8th Cir.1973) United 485 F.2d 1087 cuted under a Louisiana criminal statute (statute libelous, punishing scurrilous, de- that defined criminal defamation as the ma statements, famatory, threatening writ- publication anything licious that tends to envelope ten on outside of postcard, hatred, “expose any person to contempt, or stricken unconstitutionally overbroad ridicule, deprive or to him of the benefit of vague); State, Gottschalk v. intercourse,” confidence or social (Alaska 1978) (Alaska’s criminal def- injure any person” in his “business or “[t]o amation statute invalidated as overbroad occupation.” 379 U.S. at 65 n. unconstitutionally vague). Supreme at 211 n. 1. The Court held that majority’s The effort to narrow the pass Louisiana statute failed to consti sweep statutory of the proscription by judi- tutional punish muster because it “directs cial construction does not eliminate the ment for true statements made with ‘actual ” vagueness and concomitant in- overbreadth malice,’ as well as false statements with herent the court’s construction. The ma- regard person out to whether the making jority relies on the element of “knowingly” the statements knew the statements were 18-13-105(1) in section as the basis fоr false or disregard acted reckless constitutionally applying the statute ato they whether were true or false. 379 U.S. private defamation. majority’s con- 217. the course of its struction of the term “knowingly,” how- opinion, the Court remarked that “[cjhang- ever, limits that element to the ing disappearance mores and the virtual or dissemination of the statement and not prosecutions criminal libel support lend falsity to the Maj. op. statement. the observation that ‘under modern condi Thus, person arguably would be tions, when the rule generally of law is subject prosecution to criminal for the accepted as a private physi substitute for knowing publication or dissemination of a measures, cal hardly urged can be defamatory statement though even peace requires maintenance of a crimi ” statement was person true and the making prosecution nal private defamation.’ the statement knew it to be true. While it (quoting 85 S.Ct. at 213 might appropriate subject the defam- Emerson, Toward a Theory General private person er of a liability to civil in the Amendment, L.J., 877, the First 72 Yale malice, absence of actual see Dun & Brad- (1963)). street, 749, 2939; Rowe, 472 U.S. 105 S.Ct. Although persons by the libeled Garri- 83, quite Colo. it is anoth- officials, son’s remarks were I do subject er matter to that same defamer to oрinion not read the Court’s to turn the a conviction for criminal in libel the ab- ground. Indeed, decision on that the Court any proof sence of whatever that the state- in opinion observed the course of its that ment was false or person making that the justified criminal sanctions “cannot be the or, statement either knew it to be false merely by the fact that defamation is evil minimum, at a acted with reckless dis- damaging person ways to a in that en- regard falsity. of its truth or person] title to maintain a civil suit.” [that 69-70, majority attempts at also (quot- salvage 85 S.Ct. at 213-14 to Code, ing by Model emphasizing Penal Tent.Draft the statute No. that “[t]ruth 1961, 250.7, Comments, 44). pursu- at A con- shall remain affirmаtive defense statutory 18-13-105(2) struction of II, criminal libel that ant to section and art. sec. incorporate does not as essential elements Maj. op. of the Colorado Constitution.” which, act, morals, any omitted). is the or lead to If truth (footnotes 940-41 at indictable,” done, to criminal defense when merely an affirmative pros- that the in libel, to follow then added its it would seem 86 S.Ct. at to establish obligation no “falsity” is under and “malice” charge ecution that both in the first the falsity of the offense. were essential elements of the Id. libel prosecution A for criminal instance. reversing In Ashton’s conviction because statement, in the even if made a true оn the basis of a he was tried and convicted false, the it suffers from that was belief criminal libel that judicial construction of infirmity prosecu- as a constitutional same vagueness and uncer did not eliminate the statement made without for a false tion crime, tainty in of the the the elements falsity or without reckless knowledge of its Supreme Court stated: falsity. disregard of its truth See Gar- ..., with First Amend- Here we deal rison, at 217. 85 S.Ct. rights. Vague in area ment laws “ truth, of the defense of ‘Allowance infirmity. suffer a constitutional When defendant, proving it on the the burden of involved, rights First Amendment are we only speech false will does not mean that lest, closely look even more under Amendment re- be deterred.’ The First guise regulating conduct that is reach- protect falsehood in quires that we some police power, able freedom of protect speech that matters.” order in press or of the suffer. We said Welch, Inc., 418 U.S. Gertz v. Robert Connecticut, Cantwell [310 2997, 3007-08, 340-41, 41 L.Ed.2d 94 S.Ct. (1940)], that 60 S.Ct. 84 L.Ed. 1213 (1974) (quoting New York Times v. “narrowly such a law must be drawn 725). Sullivan, 376 U.S. at 84 S.Ct. at evil,” U.S., prevent supposed relegating truth to the In the course of 905], and that a convic- [60 defense, major- status of an affirmative tion for an utterance “based on a com- 18—13— ity declines to address subsection ‍​​​​‌​‌‌​‌‌‌‌​​‌‌‌​‌​‌‌​​​‌‌‌​‌​‌​​​‌​‌‌‌​‌​​‌‌‌‍general concept mon law of the most 105(2), the truth defense in which disallows nature,” id., undefined at 308 [60 еxpose natural defects “tending 905], could not stand. living.” Maj. op. at note of the at 1410-11 384 U.S. at 86 S.Ct. affirmative defense exception If this to the omitted); (footnotes Grayned City see tending expose in a libel the case of Rockford, 408 U.S. living remains natural defects jury charge L.Ed.2d If the effect, person publishing that a follows Ashton, falsity which included and malice exposes natural true statement libel, criminal as essential elements of living person would none- defects of salvage Kentucky’s sufficient to defini- not subject prosecution to criminal theless be tion of criminal libel from constitutional spite of the truth of the statement. infirmity, majority’s I fail to how the see eliminating than constitutional Rather 18-13-105, of section construction statutory that render the defi deficiencies falsity malice incorporate does not either constitutionally nition of criminal libel de libel, can into the definition of criminal fective, the stat the court’s construction of Indeed, it scrutiny. constitutional survive very preserves ute those deficiencies. cogently has been observed that “with strik respect, the court’s efforts are Ashton, strong advent of Garrison judicial ingly similar to the construction argument may be made that there remains struck down in criminal libel that was Ash validity to criminal libel little constitutional 195, 86 Kentucky, ton v. Tollett, 485 F.2d at 1094. laws.” Ashton objective criteria in sec- The absence of publishing a false and mali indicted for 18-13-105, majority’s tion even with degrade publication that tended cious construction, potential for creates a serious persons. The trial injure three named enforcement, is “both the selective charged jury that “criminal libel” court vague criminal and the vice of a writing hallmark “any calculated to is defined as Gottschalk, P.2d at 295. It peace, corrupt statute.” create disturbances dangerous precedent me as a when strikes judicial

the effect of a construction results setting “large enough capture a net offenders,” possible leaving and it tо

all step say

courts “to inside and who could be detained,

rightfully and who should be set large.” Papachristou City Jack-

sonville, (1972)(quoting United Reese, 214, 221, 23 L.Ed.

States v. (1875)). accordingly I dissent. ‍​​​​‌​‌‌​‌‌‌‌​​‌‌‌​‌​‌‌​​​‌‌‌​‌​‌​​​‌​‌‌‌​‌​​‌‌‌‍Gehlhausen, P.C., Gehlhausen,

John John Lamar, petitioners. Dobler,

Tom DOBLER Rose Retherford, Mullen, Johnson, d/b/a Rector & Petitioners, Dairy, Rose Cedar Anthony J. Johnson and Amelia L. Klemme, Springs, Colorado for Stratten (defendant below). Equity Coop DISTRICT COURT In and For Joseph COUNTY OF KIT CARSON and Justice ERICKSON delivered the Court, Weatherby, Judge J. of said Opinion of the Court. Respondents. original proceeding by This is Tom No. 90SA381. (the Doblers) Dobler and Rose Dobler prohibition. obtain a writ of We issued a Colorado, Supreme Court of rule why prohibi- to show cause a writ of En Banc. issued, tion should not be and now make March that rule absolutе.

I The Doblers own operate dairy. Equity (Stratton) Coop Stratton sold the 14,000 pounds Doblers of rolled corn as dairy feed for the Doblers’ herd. Stratton inadvertently pounds mixed 500 of urea pellet with the rolled corn.1 The rolled corn and urea mixture inju- caused serious ry to the Doblers’ cows.2 nonprotein pro- 1. Urea is a substitute used as a ed from the urea microbes in the rumen. supplement replacement feeding nitrogen tein in the The microbes and combine to form dairymen microbic-protein, energy of domestic animals. Some do utilize which is an source for cows, however, byproduct raising dairy process urea in the cow. A of this chеmical Doblers is ammonia. An excessive do not. In order to use urea as a feed amount of urea will supplement, gradually cause the natural cows must be ammonia level in the acclimated cow’s elevate, may appropri- blood to it. The maximum amount of urea cause death. ration, ately only fed to cows is 1% of their total grain thirty-six 3% their mixture. The rolled corn 2. Sixteen cows died within hours of provided by consumption Stratton contained urea. 37.69% of the contaminated rolled cow, immediately When urea- is consumed it enters the corn. The cows that did not die diarrhea, nitrogen experienced symptoms rumen of frothing, the animal where is extract-

Case Details

Case Name: People v. Ryan

Court Name: Supreme Court of Colorado

Date Published: Mar 11, 1991

Citation: 806 P.2d 935

Docket Number: 89SA497

Court Abbreviation: Colo.