In July of 2008, a lawyer and literary scholar named Raphael Golb created an email account named after Lawrence Schiffman, a professor who studies the Dead Sea Scrolls. From firstname.lastname@example.org, Golb sent a slew of emails in which, writing as Schiffman, he “admitted” to having plagiarized the work of another Dead Sea Scrolls professor named Norman Golb, who is also Raphael’s father.
“It is true that I should have cited Dr. Golb’s articles when using his arguments,” one email read, “and it is true that I misrepresented his ideas. But this is simply the politics of Dead Sea Scrolls studies. If I had given credit to this man I would have been banned from conferences around the world.”
For this act of satire, Raphael Golb is now fighting to stay out of prison.
Golb has been fighting for his freedom since March 2009. Back then, a Manhattan grand jury handed down a 51-count indictment against him. The Manhattan District Attorney’s Office said Golb was a criminal because he had engaged in an alleged online aggravated harassment scheme involving identity theft, criminal impersonation, email forgery and unauthorized user of a computer.
But Golb did not pose as someone else online to make an illegal quick buck. Golb did not benefit in any tangible way from his online conduct, nor did he intend to. Golb’s purpose was to defend his father by sending up his father’s scholarly rival with parody and ridicule.
In the 1980s, Norman Golb, a professor of Near Eastern languages and civilization at the University of Chicago, developed a theory of the origins of the scrolls, ancient religious texts discovered in caves in the Judaean Desert, that contradicted the then prevailing view. Ever since, he has been treated as something of a heretic.
Raphael Golb chose to defend his father through satire, and sent the emails in Schiffman’s name as part of such a campaign. Of course, he could have made his critique in a more conventional way. But Golb is hardly the first to pen a satirical text that fooled others. But more to the point, Golb argued during his trial that he was engaged in constitutionally protected criticism and had no intent to harass, defraud or commit any other crimes.
Golb v. Attorney General of New York is one of three First Amendment challenges of recently enacted cyber harassment and criminal online impersonation state statutes. Two cases in Texas — Ex parte Bradshaw and Texas v. Stubbs — have reached the state’s intermediate appellate level. Golb’s appeal has already been reviewed by New York’s highest court, a federal appeals court and his lawyers are considering filing for U.S. Supreme Court review.
Thirteen states have laws criminalizing online impersonation with the intent to obtain a benefit or to injure or defraud enacted to thwart identity theft for profit and cyberharassment, according to the National Conference of State Legislatures. Many of the new cyberharassment and criminal impersonation laws, however, are vulnerable to constitutional challenges because they rely on imprecise language to define prohibited speech and they criminalize speech that would otherwise not be subject to criminal prosecution.
Golb’s appeal exposed such constitutional flaws in three state statutes: N.Y. Penal Law § 240.30 (1) (a) that defined aggravated harassment as communication that the speaker intended to use to “harass, annoy, threaten or alarm”; N.Y. Penal Law § 190.25, that banned impersonation with “intent to obtain a benefit or to injure or defraud another” but failed to define those terms; and Penal Law § 190.25(1) and §170.05, that prohibits forgery with “the intent to defraud, deceive or injure another,” which also failed to define those terms.
Golb, however, lost the first round of his legal battle. In 2010, a Manhattan jury convicted him on 30 criminal 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.
He was sentenced to six months in jail and five years of probation.
Appeals courts, however, have been far more receptive to his arguments, most notably the New York Court of Appeals. In 2014, the court, in a significant victory for online free speech rights, tossed all of his convictions for aggravated harassment along with the statute, and several other charges. If the government were allowed to criminalize communication because it merely harassed, annoyed, alarmed or threatened, a great number of political advocates and businesses that telephone, fax, email and mail unsolicited messages could face criminal prosecution, the court reasoned. Defendants in Georgia, Rhode Island, Florida, Illinois, North Carolina and Texas have persuaded appellate courts to reverse convictions or strike down similar cyberharassment laws.
Golb, however, failed this August to persuade the U.S. Court of Appeals for the Second Circuit that emails in which he assumed the identity of one of his father’s academic rivals were constitutionally protected parody. The court, however, reversed convictions on five of the ten forgery charges because the forged emails did not cheat, defraud, or deprive by deception, but merely caused someone “to believe what is false.”
Now, he faces a two-month sentence for convictions on five counts of criminal impersonation and five counts of forgery.
The convictions stood, the federal appeals court said, because in the ten emails Golb intended to cause injury by deception — the injury being reputational damage. Even if we accept that Golb’s defamatory emails are libelous per se because they were inherently harmful to a scholar’s professional reputation and injury does not have to be proven, imprisonment cannot be an acceptable punishment.
As New York Court of Appeals Chief Justice Jonathan Lippman noted in his dissent in the 2014 ruling, “it has been decades since New York’s criminal libel statute was repealed.” Today, 13 states still have criminal defamation laws — they are rarely enforced — though the American Law Institute, which organizes and clarifies the status of state laws, recommended that libel not be criminalized 56 years ago. Why? Because the fear of being locked up in prison for a few imprudent words would likely discourage full-throated discussion, debate, criticism and reporting in our society.
Accordingly, Golb never should have had to face criminal charges. Civil court was the proper venue. There, he would have been allowed to argue that his emails did not make false accusations — the strongest argument a libel defendant can make — something the criminal law trial judge did not allow him to do.
Here in the U.S., particularly in New York, no critic should serve prison time because he intended to, or in fact did, disparage others, even if he does so by posing as someone else. That is a reasonable principle to draw from more than fifty years of First Amendment jurisprudence. Yet, partially exonerated Raphael Golb still fights to stay out of prison.
Arthur S. Hayes is an associate professor at Fordham University and the author of Sympathy for the Cyberbully: How the Crusade to Censor Hostile and Offensive Online Speech Abuses Freedom of Expression.