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.
But the 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.
“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.”
Don’t you have this backwards? Think about this through the lens of defamation law (though this isn’t a defamation case). Usually we say that people with a very poor reputation are libel-proof, but your point seems to suggest that it’s people with outstanding reputations who are libel-proof!
People on either end of the spectrum aren’t really harmed by false claims. The other day, I posted about how a young lawprof called me a pervert. When it happened, a number of people suggested I sue for defamation, which I laughed off. My reputation is solid, and her calling me a name means nothing. She can’t touch me.
While it may serve for the purpose of theoretical damages in a defamation action (because the defamation didn’t really harm the well-founded reputation of the plaintiff, now did it?), harm for the purpose of prosecution should be real world, not theoretical.
Doesn’t parody have an intent element to it though? That is, the speaker has to intend that it be viewed as parody. It seems clear that the defendant was trying to have his emails taken seriously and to dupe the recipients into believing that the senders were who he purported them to be. Even though his attempts may not have been effective, he intended them to be. Or at least, that intent is a material issue to be proven by evidence at trial.
I may be overreading into the statute, but the element “Impersonates another” seems that it would have to be a bona fide attempt to impersonate another actual person, not a parodic or fictional version of a person.
First, parody isn’t a crime, so it doesn’t have elements. But yes, intent is a critical aspect of the crime of criminal impersonation, and that’s a large part of the problem with the majority’s holding that non-monetary/reputational harm is sufficient. I disagree that Golb intended that to dupe the recipients into believing he was really Marty Schiffman. After all, they were gmail and not edu emails, the contents were ridiculous and the recipients all knew Schiffman, and could easily pick up the phone and say, “Marty, what the hell is with these cockamamie emails?”
But his intent was to ridicule the scholars who froze his father out of the discussion, embarrass them and cause people to take his father’s theory seriously. And that’s the problem. If someone impersonates another to get money, the purpose is pretty clear to understand. When the purpose is ridicule and embarrassment, is it criminal? For example, take a look at Ken White’s post at Popehat, which purports to be a guest post by Peoria Mayor Jim Ardis. Real person. Impersonated. Intended to harm his reputation. Crime?
When I referred to elements, I was referring to the elements of 190.25, one of which is that the offender “impersonates another,” I didn’t mean to say that parody has elements, but criminal impersonation in the second degree does, and that’s one of them.
Whether or not Golb intended to dupe the recipients is plainly a question fact. You may not believe he had that intent, but it’s certainly plausible to believe he did have that intent. So that question of intent, if the state can make a plausible case that intent exists, should be put to the jury. It’s a reasonable counterargument to your points that Golb may have intended to dupe them, but just been bad at it. Lots of people are bad at crime, but it doesn’t mean they get to commit those crimes and not face punishment.
The post by Ken White is different because Mr. White clearly did intend it to be parodic, as is evidenced throughout. The intent of the piece is not to make a reader believe it was written by Jim Ardis, but to use a fictionalized Jim Ardis to draw the reader’s mind to the absurdity of the logical conclusions of the real Ardis’ positions.
It is not just that Ken White is better at writing than Golb (though he is), but the intent Mr. White had in writing the piece is clearly parodic, which makes it both 1st amendment protected, and not an impersonation, since Mr. White does not intend others to believe he is Ardis.
So Ken’s post is parodic because it’s “clearly parodic,” and Golb’s emails aren’t because they aren’t? “You know it when you see it” is not a very doctrinal view of law, not to mention Ken’s parodies have fooled some people into thinking it was really the target doing the talking. He can very convincing.
The reason it’s easier to say Ken’s is parody is because it’s funny, whereas Golb’s was not. But funny isn’t the sine qua non of parody, nor should it be. Crimes aren’t determined by the outsider’s sense of humor or lack thereof. The intent to ridicule, mock and embarrass is just as much parody when done seriously as humorously.
What you miss is that there is another element to crim impersonation, that it cause injury or benefit, which until now has been understood to mean financial. As soon as injury is divorced from objective gain and becomes reputational, Ken’s is just as much a jury question as Golb’s, even if you have mad skilz that allow you distinguish between good parody and bad.
And yes, Ken is a much better writer than Golb.
I think the standard I articulated is clear: Did the defendant intend the person(s) he contacted to genuinely believe that the defendant was the person whom the defendant is alleged to have impersonated? It does not depend on the recipient of the communication in fact believing the defendant, nor on the writing skill of the defendant, just on the intent of the defendant. To prove actual impersonation the state had to prove that Mr. Golb intended the recipients of those emails to believe they were from Schiffman. Did they do that here? Probably not, given the prejudicial nature of trying unconstitutionally overbroad statutes at the same time. So if it were me, I’d vacate and remand for a new trial.
You’re reasoning from the assumption that Golb’s emails are parody. If that assumption is true, then game over for the prosecution. But the question of whether they’re parody, that is, whether Golb intended the persons he contacted to believe they were being contacted by Schiffman, is factual. So is the question of whether Ken’s post is parody. It has nothing to do with whether Ken is funnier than Golb (he is), or whether readers believe Ken or Golb (probably not in both cases). It matters what their intents were. We agree on what Ken’s intent was, but disagree on what Golb’s was.
And if someone, say a prosecutor, disagreed with Ken’s intent, he too would go to trial. But we both know that would be absurd, because it’s parody. Yet, he could be convicted because nobody knows what a jury will do. And so Ken would be nuts to do parody because a prosecutor with no sense of humor and a jury with a bunch of dopes could convict him. And then there will be no parody, because it’s not worth a conviction.
See any flaw with your plan?
I keep coming back to the same problem: if the impersonation is for financial gain, then we have an objective criterion to distinguish crim impersonation from parody. Without that, it’s just a matter of how the parody strikes a prosecutor. That’s not good enough.
I think your point is fairly strong, and I’m open to changing my view on this. I see the case for not requiring pecuniary gain to be the instance of a jilted lover trying to impersonate their ex without an intent for profit, and just acting out of spite.
Now, there may be enough other laws to cover this kind of thing (stalking, harassment), but that sort of action is what I envision as being legitimately criminal action which doesn’t involve monetary gain to the offender.
Fair enough. Now if only the majority of the COA saw it as clearly.
A few points to add to the conversation:
1) There is a long satirical tradition of readers not realizing that what they’re reading is a satire. One example that readily comes to mind is the Letters from Unknown Men, an anonymous work that was banned by the Pope, I believe in 1609. It consisted of correspondence purportedly written by Church officials, and its contents were initially mistaken as authentic by monks around Europe.
2) A question that seems relevant is, how long must the false impression be intended to last for the intent to be criminal? If Golb wanted people to think he was Schiffman just for a few minutes, until they had read the emails or clicked on the “link” in them or phoned Schiffman to verify, would that suffice? Apparently it would, and this seems to have the consequence that the hoaxes of the Yes Men and other similar groups are now crimes.
3) Finally, there is a whole issue involving the nature of deadpan humor. Golb says it was a deadpan satire, the others say it was meant to deceive. This raises the likelihood that any stunt of this sort can be prosecuted on a case-by-case basis, posing a danger that at least some parodies will mistakenly be criminalized… The only way of avoiding this problem would seem to be to hold that it’s speech, and that speech cannot be criminalized in the absence of a compelling state interest which is lacking here, end of story. There doesn’t seem to be any middle ground here: there’s a slippery slope problem that arises from the vague contours of the “line” separating the deadpan from the comical.
Thanks for the additional examples. This is one of those areas where people have an extremely difficult time seeing the problem, as we all see conduct through the prism of our own experiences and can’t conceive of how it could perceived differently by other reasonable people through the prism of their experiences.
So while people tend to see one person’s conduct as “clearly wrong” while another’s as not wrong at all, they can’t see the line-drawing problem, or that their clarity comes from their own perspective, and not from some innate truth about the underlying conduct.
I bet the intact misdemeanor counts will get tossed on a habeus appeal or even the Supreme Court (think of Stolen Valor). Unfortunate that the majority, with all the good will in the world, couldn’t leap over its own emotions (and the Manhattan DA’s Gotham-like smear tactics) when it came to these counts. Lippman got it exactly right, and I think he will end up having the last word.
This would make a fascinating test case if they decide to petition for cert. to the Supreme Court. My understanding is that it’s being discussed.
SHG wrote:
Good thing that NY wasn’t trying the inventor of literary parody, Hipponax of Ephesus (ca. 540 BCE). The sculptor Bupalus, subject of a Hipponax parody, hanged himself after reading it. And Hipponax didn’t even use email.
And it’s not even fair to call Hipponax a Luddite, considering they didn’t exist for more than 2000 years.
The page devoted to the satire problem on the “Raphael Golb Trial” website (which, incidentally, abundantly documents this case) includes the following statement from the Princeton Encyclopedia of Poetics: “The satirist serves as self-appointed prosecutor, judge, and jury, exposing and condemning the worst excesses of human behavior, sometimes… with the object of provoking the wicked to guilt, shame, rage, and tears….” Perhaps we should add suicide to the list.
Exactly right. That court’s only jurisdiction is the reader’s mind, and even then only if the reader grants it.
The NYCA used sleight of hand hardly worthy of a stage magician to resurrect a zombie criminal libel statute from a criminal impersonation statute. While nobody was looking they cleverly conflated pecuniary injury with general butthurt and the mere possibility of reputational injury. Lippman, CJ, nailed it perfectly:
When zombie criminal libel walks, even truth is no defense. There are very good reasons that criminal libel should remain dead and buried. For the NYCA majority the Augustan era Scriblerus Club would be a criminal conspiracy.
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P.s. (no need to post this) checking this out again, I just noticed a discrepancy in your article I thought you might want to be aware of: you say there are 19 remaining misdemeanors, but then a few paragraphs later you speak of 5, and again in the last paragraph, 5.
Much better to correct and be accurate than not. Kuby told me yesterday that he gave me the wrong number of convictions (see how I blame him), but that 19 was the correct number. After correcting the one he mentioned, I neglected to correct the others in the post. Now, they’re properly corrected. Thanks for letting me know.
Happy to be of service. And in that spirit, there are still two “fives” — one in the last paragraph, one in the paragraph beginning with the word “Still”…
P.s. also is sounds like Kuby beat 33 counts (19 + 33 = 52), not 46… still not bad!
You couldn’t have mentioned that in the last comment?
Kuby made the same point to me yesterday. I told him that he went from hero to zero. He put on that puppy dog face of his because I was being mean.
If only I could figure out a way to blame Kuby for this, but I can’t. Thanks again.
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Hi,
Thanks for an excellent article.
“Neither the court nor Eugene recognize that professors sending serious emails don’t use gmail accounts, or make outlandish confessions of wrongdoing.”
And I believe it is much simpler than that. We can never know exactly who will believe which latest celebrity satire, which Nigerian scam or some other oddball claim. And in our days of blogs and information availability, it would take five minutes for Lawrence Schiffman to write a blog note :
“oh, a mean satirist sent out an email in my name yesterday, supposedly confessing to plagiarism. That was not from my university email address, and was not from me.”
End of story of confusion. If that was not done, then I would hold Schiffman as responsible for wanting a bit of ongoing confusion in order to whine to his DA friends.
As for email forums, there is a similar principle. Any email forum can moderate new members. Even back at the time of this event. Look closely at the first post or two and see if they pass the smell test. After one or two sock-puppets any email forum properly run would take that step.
Steven Avery
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