identity theft in the second degree (2
counts), criminal impersonation in the second degree (14 counts), forgery inthe third degree (10 counts), aggravated harassment in the second degree (3
counts), and unauthorized use of a computer, all in violation of New York
law,
and after the trial judge sentenced him to “an aggregate
sentence of six months”, Raphael Golb appealed.
People v. Golb, 102 A.D.3d
601, __ N.Y.S.2d __, 2013 WL 322575 (New York Supreme Court – Appellate Division 2013). (The opinion notes that
the judge also vacated the “identity theft conviction under the first count of
the indictment” and therefore dismissed that charge. People
v. Golb, supra.)
To understand the charges, and the opinion this post
examines, it is helpful to understand a little about what was going on in the
case. It involves Norman Golb, Raphael
Golb’s father, who is a professor at the University of Chicago and who,
according to Wikipedia,
has been a key proponent of the
viewpoint that the Dead Sea Scrolls found in Qumran were
not the product of the Essenes, but rather of many different Jewish sects
and communities of ancient Israel, which he presents in his book Who
Wrote The Dead Sea Scrolls?: The Search For The Secret Of Qumran. In the
1990s, Golb was an advocate for the freeing of the Scrolls for academic
pursuit.
And according to this article in the New York Times, Professor Golb’s views
attracted limited support from other
scholars, and none from any major academics in the United States. From his home
in Chicago, where he has been teaching and publishing, he attributed this cold
shoulder to non-scholarly factors. `The personal animus, I regret to say, has
nothing to do with scholarship. It has to do with their anger that I came up
with a new and more cogent view of the origin of the scrolls.’
According to the same article,
[b]etween 2006 and 2009, [Raphael Golb]
created more than 80 online aliases to advance his father’s views about the
Dead Sea Scrolls against what he saw as a concerted effort to exclude them.
Along the way, according to a jury . . . , he crossed from engaging in academic
debate to committing a crime.
Or, as the New York Supreme Court’s Appellate Division
noted, Raphael Golb is
the son of an expert on the Dead Sea
Scrolls. [He] set up email accounts in which he pretended to be other scholars
who disagreed with [his] father's opinion on the origin of the Scrolls. Among other
things, [Raphael Golb] sent emails in which one of his father's rivals
purportedly admitted to acts of plagiarism.
People v. Golb, supra.
According to the New York Times article, Golb’s “aliases begot other aliases, known on the
Internet as sock puppets: 20, 40, 60, 80.” The same article also notes that the
“sock puppets debated with other posters, each time linking to other sock
puppets to support their arguments, creating the impression of an army of
engaged scholars espousing Norman Golb’s ideas.”
And that brings us back to the opinion. Golb’s “principal defense was that these
emails were only intended to be satiric hoaxes or pranks.” People
v. Golb, supra. The court, though, was not persuaded:
[A]s it has been observed in the
context of trademark law, `[a] parody must convey two simultaneous -- and
contradictory -- messages: that it is the original, but also that it is not the
original and is instead a parody’ (Cliffs Notes, Inc. v. Bantam Doubleday
Dell Publishing Group, Inc., 886 F.2d 490, 494 [U.S. Court of Appeals for the 2d Circuit 1989]).
Here, the evidence clearly established that [Golb]
never intended any kind of parody. Instead, he only intended to convey the
first message to the readers of the emails, that is, that the purported authors
were the actual authors. It was equally clear that [Golb] intended that the
recipients' reliance on this deception would cause harm to the purported
authors and benefits to [him] or his father.
The
court's charge, [i.e., the judge’s instructions to the jury,] which
incorporated many of [Golb’s] requests, fully protected his constitutional
rights, and the court was not required to grant [his] requests for additional
instructions. The court carefully informed the jury that academic discussion,
parody, satire and the use of pseudonyms were protected by the 1st Amendment.
People v. Golb, supra.
(For more on parody and the 1st Amendment, check out the article you
can find here.)
As to the trial judge’s instructions to the jury, the
opinion explains that the
court also ensured that the jury
understood the terms `fraud’ and `defraud’ by expanding their definition and
advised the jury that `without the intent to deceive or defraud as to the
source of the speech with the intent to reap a benefit from that deceit, there
is no crime.’
The court was under no obligation to
limit the definitions of `injure’ or `defraud’ -- terms used in the forgery and
criminal impersonation statutes -- to tangible harms such as financial harm. .
. . The court also properly employed the statutory definition of `benefit’ as
`any gain or advantage’ to defendant or to another person (New York Penal Law §
10.00[17]).
People v. Golb, supra.
The Supreme Court – Appellate Division also did not buy
Golb’s argument that
it is constitutionally impermissible to
include an intent to influence a constitutionally-protected academic debate
within the concept of fraud, injury or benefit, that allowing injury to
reputation to satisfy the injury element would effectively revive the
long-abandoned offense of criminal libel, and that, in any event, the alleged
truth of the content of the emails should have been permitted as a defense.
However, the evidence established that [Golb]
intended harm that fell within the plain meaning of the term `injure,’ and that
was not protected by the 1st Amendment, including damage to the careers and
livelihoods of the scholars he impersonated. [Golb] also intended to create
specific benefits for his father's career.
The fact that the underlying dispute
between [Golb] and his father's rivals was a constitutionally-protected
debate does not provide any 1st Amendment protection for acts that were
otherwise unlawful.
People v. Golb, supra.
And the court explained that Golb
was not prosecuted for the content of
any of the emails, but only for giving the false impression that his victims
were the actual authors of the emails. The 1st Amendment protects the right to
criticize another person, but it does not permit anyone to give an
intentionally false impression that the source of the message is that
other person. . . .
People v. Golb, supra.
Finally, the Supreme Court – Appellate Division rejected
Golb’s
claims that the statutes under which he
was convicted were unconstitutionally vague or overbroad. None of these
statutes was vague or overbroad on its face or as applied (see People v. Shack, 86
N.Y.2d 529, 538 [1995]; Broadrick v. Oklahoma, 413 U.S. 601, 611–616 [1973)]).
The People were required to prove that [Golb]
had the specific fraudulent intent to deceive email recipients about his
identity, and to obtain benefits or cause injuries as a result of the
recipients' reliance on that deception. The statutes criminalized the act of
impersonation and its unlawful intent, not the content of speech falsely
imputed to the victims.
People v. Golb, supra.
(As Wikipedia explains, the void for vagueness doctrine is based on two
principles: the desire to ensure that
criminal statutes are not “too vague for the average citizen to understand”;
and that they do not give law enforcement officers too much discretion in
deciding who will and who will not be arrested and prosecuted.)
The court therefore affirmed Golb’s conviction and
sentence. People v. Golb, supra.
As the New York Times article
published on February 16 noted, Golb, who had been a lawyer, was disbarred as
the result of his felony convictions and, when the article went to press, was
“waiting to begin serving” his six-month sentence.
If you would like to read the arguments for
and against his conviction, I suggest you check out this article; it has the
best coverage of the issues I have seen.
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