Golb Revisited: What If It Meets All The Elements?

The peculiar case of Raphael Golb, and his sockpuppet defense of his father’s research on the dead sea scrolls has been the subject of a few posts already. And yet, oral argument before the New York Court of Appeals gives rise to another question worthy of note. It’s the case that keeps on giving.

Via Eugene Volokh at the WaPo Conspiracy (for as long as it remains public before hiding behind its paywall).

Here’s the quote from the transcript, or you can find it in the oral argument video:

JUDGE PIGOTT: So if … you get some college kid who write – – – who e-mails the girlfriend of his roommate saying, you know, he really is a useless person. Is that aggravated harassment with respect to the victim, boyfriend/roommate?

MR. RIVELLESE: Yes, because it’s got – – –


MR. RIVELLESE: It meets all the elements. It does not require that the person that you send the communication to is the same person that you intend to harass, annoy and alarm. It’s – – –

I’ve blogged before about the danger of criminal harassment laws, when they are extended beyond offensive speech to one particular unwilling person — the traditional telephone harassment example — and apply instead to speech about a person.

The question raised applies to so very many aspects of life on the interwebz and its intersection with laws designed to leave no person’s feelings hurt.  Consider the ramifications, as expressed by ADA Vincent Rivellese in response to Judge Eugene Pigott’s question for those who are busy promoting new laws to end bullying, revenge porn, unpleasant use of computers, etc.

Laws to end the things that most of us would agree need stopping are often impossible to narrow down to the point where they limit only the conduct that’s intended. Advocates argue against the specific evil, but the law isn’t so easily crafted so that it doesn’t touch others, unintentionally or, on occasion, unfortunately swept into the mix.

Contrary to the cries of the advocates, reliance on prosecutors’ sound discretion is no safeguard from subsequent abuse.  While advocates may not care that others who were never meant to be turned into criminals are included because their conduct “meets all the elements,” the rest of us are not nearly so sanguine about innocent people being turned into criminals to vindicate their personal concerns.

Meet reality.  It’s not easy crafting a law, anticipating all that can (and will) go wrong from overly zealous and underly thoughtful proponents.  This is the danger. This is why it’s dangerous when passion exceeds grasp.  If we’re already at three felonies a day, do we really want to make it four?

Fear the zealots. Their arguments may be enticing. Their issue real. But their cure could be worse than the disease.  And they don’t care.


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  1. Pingback: When The Bully Tells The Truth | Simple Justice

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