Top New York Court Protects The Right To Annoy

Date posted: May 27, 2014 | Posted in First Amendment, Litigation | 0 comments

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By IT-Lex Intern Kristin Bergman (Twitter / LinkedIn)

Anyone that thinks that the world of academia is dull, is in for a surprise with a recent decision from New York’s highest court. As we wrote over a year ago, (then disbarred) attorney Raphael Golb “concocted an elaborate scheme” impersonating scholars in emails and posting anonymously to blogs in order to defend and promote his father’s research on the Dead Sea Scrolls. For this campaign, Golb was convicted of identity theft, criminal impersonation, forgery, aggravated harassment, and unauthorized use of a computer. The New York appellate court affirmed Golb’s sentence of six months in jail and five years probation.

This month, the New York Court of Appeals vacated several of these convictions—including all of the counts of identity theft, aggravated harassment, and unauthorized use of a computer, and about one-third of the counts of criminal impersonation. This leaves Golb with misdemeanor convictions for on nine counts of criminal impersonation and 10 counts of identity theft.

In its opinion, the Court considered the harm contemplated by criminal impersonation charges. Under a New York criminal statute, a person is guilty of criminal impersonation when he or she “impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another.” The Court determined that the harm may come in a form other than monetary loss, such injury to reputation—very important in academia. That said, to be criminalized, a prosecutor must demonstrate “intent to cause a tangible, pecuniary injury to another . . . more than a prank intended to cause temporary embarrassment or discomfiture, and that he acted with intent to do real harm.” The Court distinguished creating email accounts in other scholars’ names from the malicious use of those accounts, holding:

[T]he mere creation of email accounts [impersonating scholars] (in contrast to the use of those accounts to send emails) does not constitute criminal conduct under Penal Law § 190.25. The mere creation of email accounts that are not used does no substantial harm to anyone.

It therefore dismissed those counts involving solely the creation of the email accounts or emails where Golb merely asked for the recipient’s opinion.

The Court went on to hold that New York’s aggravated harassment statute “is unconstitutionally vague and overbroad,” vacating Golb’s conviction under the statute. Extending People v Dietze’s reasoning, in which the Court struck down a harassment statute prohibiting use of obscene language with the intent to even annoy another, the Court quoted “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.” Invoking the incitement doctrine, the Court found New York’s current statute similarly overbroad and unconstitutional. It said simply: “The statute criminalizes, in broad strokes, any communication that has the intent to annoy”—and its sweeping language violates free speech clauses in the First Amendment and New York’s own Constitution.

The Court remitted the case to the appellate court for resentencing in accordance with this order dismissing about one-third of the convictions.