People v. Golb
23 N.Y.3d 455, 15 N.E.3d 805 (2014)
Rule of Law:
New York Penal Law § 190.25 (criminal impersonation in the second degree) applies to impersonation with intent to injure a person's reputation, provided the intent is to cause 'real harm'; however, Penal Law § 240.30(1)(a) (aggravated harassment in the second degree) is unconstitutionally vague and overbroad under both the State and Federal Constitutions for criminalizing speech with the mere intent to annoy.
Facts:
- University of Chicago Professor Norman Golb is a Dead Sea Scrolls scholar who advocates the 'Jerusalem libraries theory' regarding the scrolls' origins, which differs from the commonly accepted 'Qumran-Sectarian theory'.
- Beginning in September 2006, Norman Golb’s son, Raphael Golb, initiated an Internet campaign to discredit and harm other Dead Sea Scrolls academics and scholars who did not promote his father's views.
- Raphael Golb sent emails using pseudonyms and impersonating real academics, such as Robert Cargill and Stephen Goranson, to museum administrators, scholars, and reporters, questioning their scholarship and criticizing their work.
- Raphael Golb orchestrated an elaborate scheme where he used the pseudonym 'Jerome Cooper' to engage University of North Carolina Professor Bart Ehrman in an email exchange, then impersonated retired Harvard Professor Frank Cross to criticize Ehrman by linking to an anonymous blog post publishing Ehrman's emails.
- Raphael Golb impersonated NYU Professor Lawrence Schiffman by creating the email account 'larry.schiffmangmail.com' and sending emails to Schiffman’s students, colleagues, and NYU deans, alleging Schiffman had plagiarized Professor Golb's work and manufacturing admissions of plagiarism.
- Raphael Golb also created the email address 'seidel.jonathangmail.com' to impersonate Dr. Jonathan Seidel, sending emails to the Royal Ontario Museum Board of Trustees and Dr. Risa Levitt Kohn, criticizing Kohn's curation of an exhibit and both promoting and seemingly condemning Professor Golb's theories.
Procedural Posture:
- A New York County grand jury charged Raphael Golb with 51 counts, including identity theft, criminal impersonation, forgery, aggravated harassment, and unauthorized use of a computer.
- Raphael Golb proceeded to a jury trial where 31 counts were submitted to the jury.
- The jury convicted Raphael Golb on 30 counts, including 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.
- Raphael Golb was sentenced to six months in jail and five years of probation on the identity theft counts, and concurrent lesser terms on the remaining counts.
- The Appellate Division (intermediate appellate court) modified the Supreme Court (trial court) judgment by vacating one identity theft conviction and dismissing that count, and otherwise affirmed the judgment, with Raphael Golb as the appellant and the People of New York as the appellee.
- A Judge of the Court of Appeals (highest court) granted Raphael Golb leave to appeal.
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Issue:
Does New York Penal Law § 190.25 (criminal impersonation in the second degree) encompass intent to injure a person's reputation, beyond pecuniary harm or interference with governmental operations, and is Penal Law § 240.30(1)(a) (aggravated harassment in the second degree) unconstitutionally vague and overbroad as applied to communications intended to annoy?
Opinions:
Majority - Abdus-Salaam, J.
Yes, New York Penal Law § 190.25 (criminal impersonation in the second degree) encompasses intent to injure a person's reputation, and yes, Penal Law § 240.30(1)(a) (aggravated harassment in the second degree) is unconstitutional. The Court held that 'injury to reputation' is within the 'injury' contemplated by Penal Law § 190.25, rejecting the argument that the statute is limited to tangible harms like pecuniary loss or interference with governmental operations. The reasoning is that many individuals, especially academics, value their reputations as much as their property, indicating legislative intent for a broader scope. However, this intent must be to cause 'real harm,' not merely temporary embarrassment or discomfiture. Therefore, the mere creation of email accounts without use, or an email lacking sufficient intent to injure, does not constitute criminal impersonation. Conversely, the Court found Penal Law § 240.30(1)(a) to be unconstitutionally vague and overbroad under both the State and Federal Constitutions because it criminalizes any communication made with the intent to annoy, lacking constitutionally necessary limitations on speech. Citing People v Dietze, the Court reiterated that proscriptions of pure speech must be sharply limited to words that, by their utterance alone, inflict injury or tend naturally to evoke immediate violence, and declined to judicially rewrite the statute. The Court affirmed convictions for forgery, finding sufficient evidence of deception and intent to defraud or injure through fake emails. However, it vacated the conviction for unauthorized use of a computer, applying the rule of lenity, because the statute is intended for unauthorized access (hackers) and not for an authorized user like an alumnus who uses a computer for criminal purposes. Lastly, the Court vacated the identity theft conviction, finding insufficient evidence that Raphael Golb created or falsified an actual business record of NYU, which was a necessary element for the underlying felony.
Concurring-in-part-and-dissenting-in-part - Chief Judge Lippman
Yes, the aggravated harassment statute is unconstitutionally overbroad, and there was a failure of proof for unauthorized computer use and identity theft. However, no, the criminal impersonation and forgery convictions should not stand. Chief Judge Lippman agreed with the majority regarding the unconstitutionality of the aggravated harassment statute and the vacatur of unauthorized use of computer and identity theft convictions. However, he dissented from the majority's decision to uphold some criminal impersonation and all forgery convictions. He argued that even with the majority's interpretation that 'injure' includes reputational harm, Penal Law § 190.25 remains unconstitutionally overbroad. He contended that the statute's broad phrasing, which penalizes impersonation meant to be harmful or beneficial 'in any way,' could criminalize a vast amount of constitutionally protected pseudonymous communication on the Internet. He further stated that the majority's distinction of 'real harm' versus 'prank' does not adequately cure the overbreadth, as many constitutionally protected statements using assumed identities could be intended to cause 'real harm.' Chief Judge Lippman also argued that the trial court's jury instructions did not include the limitations the majority now draws. He found the use of the third-degree forgery statute for the same 'amorphous purpose' equally objectionable, as it grants prosecutors excessive power over speech. He concluded that reputational injury, if actionable, should be a civil tort, not a crime, comparing the application of these statutes to the long-abandoned and constitutionally problematic crime of criminal libel. He would have dismissed the indictment in its entirety.
Analysis:
This case significantly clarifies the scope of New York's criminal impersonation statute, expanding 'intent to injure' to include reputational harm, provided the intent is to cause 'real harm.' This broadens the application of the statute beyond traditional financial fraud and recognizes the value of reputation, particularly in academia. Simultaneously, the decision serves as a critical affirmation of free speech rights by striking down a portion of the aggravated harassment statute for being unconstitutionally vague and overbroad, emphasizing that laws criminalizing speech merely intended to annoy violate First Amendment protections. The ruling highlights the ongoing challenge for courts to adapt existing legal frameworks to the complexities of digital communication while safeguarding constitutional liberties.
