That there hasn’t been huge interest in the trial and appeal of Raphael Golb remains a mystery to me. Aside from Eugene Volokh and I, interest in the blawgosphere has been nearly non-existent, which is sad given that the case is fascinating. The facts underlying the case are quite remarkable, and the legal implications of the case for the rest of the internet are huge. There was even a Streisand moment in the middle.
Yet, it hasn’t sparked the level of interest and debate that it should have. Now that the New York Court of Appeals has decided Golb, we’ll live with the consequences. The Court, in an opinion by Judge Sheila Abdus-Salaam, upheld Golb’s misdemeanor convictions for
five 19 counts of criminal impersonation in the second degree, Penal Law §190.25, which to the unknowing eye would make it appear a win for the prosecution. But not so fast.
A New York County grand jury charged defendant with 51counts of identity theft, criminal impersonation, forgery, aggravated harassment and unauthorized use of a computer. He proceeded to a jury trial, where 31 counts were submitted for the jury’s consideration. The jury convicted on 30 counts: two counts of identity theft in the second degree; 14 counts of criminal impersonation in the second degree; 10 counts of forgery in the third degree; three counts of aggravated harassment in the second degree; and one count of unauthorized use of a computer.
After this decision, Golb stands convicted of only [Edit for accuracy 4/15]
five 19 out of 51 charges, and only misdemeanors after the felonies were tossed. For the New York County District Attorney’s office, this is nothing to write home about. And to add to the mess, the Court also held the crime of aggravated harassment unconstitutional
On the other hand, Golb was tried on 31 counts, including the unconstitutional aggravated harassment, which meant that a tidal wave of evidence was presented against him, wreaking prejudicial havoc and deflecting attention from the real issues raised by his conduct. Throw enough dreck against a wall and something is bound to stick. Only on appeal, when the odor of the trenches is filtered through the rarified appellate air, does the tactic of smearing a defendant no longer waft unpleasantly.
Still, if somebody is keeping score, this goes in the win column for my buddy Ron Kuby, as he beat
46 33 counts and got a law tossed, while the prosecution walks away with 5 19 misdemeanors and one fewer crime on the books.
The ruling on aggravated harassment is quite instructive:
The statute criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment statute at issue in Dietze, “no fair reading” of this statute’s “unqualified terms supports or even suggests the constitutionally necessary limitations on its scope.”
The same must be said of so many of the nouveau feel-good laws, where vague words are defined by more vague words, and empty rhetoric is spewed to criminalize any conduct that hurts feelings.
five 19 counts of criminal impersonation left intact, even though misdemeanors, remain a problem. The majority, quoting Shakespeare’s Iago from Othello in footnote 2 in support, held:
Here, defendant did not cause any pecuniary loss or interfere with governmental operations. While we agree with defendant that the statutory terms “injure” and “benefit” cannot be construed to apply to any injury or benefit, no matter how slight, we conclude that injury to reputation is within the “injury” contemplated by Penal Law § 190.25. Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property, and we believe the Legislature intended that the scope of the statute be broad enough to capture acts intended to cause injury to reputation.
While it’s no doubt true that reputational injury is real, it is also the target of much criticism. That a person values his reputation doesn’t make it immune from attack. Indeed, it’s often the very target of attack, and a core value of 1st Amendment protection. The opinion offers no guidance on how to distinguish “real” reputational injury from other injury, “no matter how slight.”
When injury is based on subjective bases, feelings, it’s reduced to a game of rhetoric, who can make up a compelling Queen for a Day story of misery and heartache, and will a judge will be sufficiently empathetic to feel the pain.
In dissent, Chief Judge Jonathan Lippmann wrote:
There is, of course, nothing in the language of the statute to prevent its use in the manner proposed by the majority — but that is the problem. The statute, as written, allows a criminal conviction for impersonation provided only that it is meant to be harmful or beneficial in any way. It is hard to imagine any pseudonymous communication that could not be prosecuted under this statute. And, in an age in which pseudonymous communication has become ubiquitous, particularly on the internet, this statute, literally understood, criminalizes a vast amount of speech that the First Amendment protects.
Considering these arguments, Eugene Volokh opined that he thought the majority’s view “is likely right as a statutory matter, and that its analysis is consistent with the First Amendment.” I think Eugene has significantly undervalued the parody aspect of Golb’s conduct. Golb created bogus gmail accounts in the names of his father’s detractors, and sent email admitting they wronged his father’s research, for example. Neither the court nor Eugene recognize that professors sending serious emails don’t use gmail accounts, or make outlandish confessions of wrongdoing.
Was this parody or a crime is the ultimate question. The problem with this question is that parody is in the eyes of the beholder, and a crime is in the eyes of the perpetrator. Lawrence Schiffman, one of Golb’s targets, found nothing funny about the emails. So what? The targets of parody rarely do. Parody doesn’t have to be amusing, though it often is. Parody is “created to mock, comment on or trivialize” something. It exists to harm a reputation.
The Court implicitly holds that what Golb did was not parody, because neither the judges, the prosecutor nor targets like Schiffman thought it was funny. So good parody gets a hearty guffaw, and bad parody gets a conviction? Or more to the point, parody that escapes the technological limits of the judges on the New York Court of Appeals, who failed to appreciate what any slightly astute digital native would have immediately realized, that the emails Golb sent could not be real, is a crime.
What makes this particularly troubling from the perspective that the damaged complained of by the targets, Lawrence Schiffman in particular, reflects less about Raphael Golb’s efforts at bad parody than the fragility of their reputation. If Schiffman’s reputation within the academic community was well-founded, there would have been nothing Golb could do to harm it, and nothing Golb could do that would make Schiffman do more than chuckle. Instead, it caused Schiffman to seek Golb’s prosecution.
This act by Schiffman is more damning to his reputation than anything Raphael Golb could have done. So regardless of the sentence imposed on remand for the
five 19 remaining misdemeanors, it looks like Golb wins the battle of Schiffman’s reputation.