NY Prosecutor: Annoying Someone Is A Criminal Act, Especially If It's In Writing

from the because-'on-a-computer' dept

Fri, Apr 11th 2014 7:45am — Tim Cushing

Some very interesting claims arose from oral arguments related to a case that has been kicked around the court system for a couple of years now. The case is People v. Golb, one that arose out of an extended disagreement between two college professors (Norman Golb of the University of Chicago and Lawrence Schiffman of NYU) over the origins of the Dead Sea Scrolls.

One thing led to another… which then (inexplicably) led to Norman Golb's son, Raphael, creating more than 50 online aliases to create a ground swell of support for his father's views… which then (even more inexplicably) led to Raphael Golb impersonating Lawrence Schiffman (via email) in order to portray Schiffman as a plagiarist -- using Schiffman's own email address. It is this Golb the People have a problem with.

(Even more inexplicably, this somehow also led to a lawyer claiming to represent Schiffman sending legal threats to bloggers who had covered the case, asserting that their "criminal postings" needed to be taken down immediately. Clifford A Rieders Esq. could not have picked a worst trio of bloggers to send baseless legal threats to: Scott Greenfield of Simple Justice, Eugene Volokh of the Volokh Conspiracy and Ken White of Popehat. Lessons were indubitably learned.)

In January of 2013, the court found that the younger Golb's First Amendment rights had not been violated during his prosecution for impersonating Schiffman in order to discredit him.

The pre-Washington Post version of Volokh Conspiracy covered the relevant parts of the decision.

Defendant’s convictions arise out of his use of emails to impersonate actual persons. Nothing in this prosecution, or in the court’s jury charge, violated defendant’s First Amendment or other constitutional rights… Among other things, defendant sent emails in which one of his father’s rivals purportedly admitted to acts of plagiarism…

Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails. The First Amendment protects the right to criticize another person, but it does not permit anyone to give an intentionally false impression that the source of the message is that other person (see SMJ Group, Inc. v 417 Lafayette Restaurant LLC, 439 F Supp 2d 281 (SD NY 2006]).

This decision is now being appealed, and the Volokh Conspiracy (Beltway Edition) is again on the scene, pointing out how the prosecutor is pushing for a very broad reading of relevant statutes -- something that will be of concern to anyone who might say something offensive via the internet.

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. (See posts here and here, as well as this law review article, which starts by concrete examples of how such laws have been used.) And the prosecutor’s statement in this argument helps illustrate just how broadly prosecutors can read such laws.

Eugene Volokh quotes part of the oral arguments presented April 2nd. Here's the lead-up and the relevant quote, both of which highlight the prosecutor's (Vincent Rivellese) ridiculous stance, as well as the judges' incredulity at what's being claimed.

CHIEF JUDGE LIPPMAN: Is this aggravated harassment or is this just annoying behavior?
MR. RIVELLESE: Well, it's both, that's for sure. What's the - - -
CHIEF JUDGE LIPPMAN: Well, but is it technically a crime? Can it be in this kind of - - -
MR. RIVELLESE: Yes.
CHIEF JUDGE LIPPMAN: Isn't that a little bit overbroad?
MR. RIVELLESE: No.
CHIEF JUDGE LIPPMAN: No? Go ahead. Why not?
MR. RIVELLESE: This - - - this is the closest argument obviously in the case, but the aggravated harassment involves an intent to harass, annoy or alarm, and it's - - - it's got an intent that's required. It's also got the likelihood of harassing or alarming the recipients or the victims. It's also got - - -
JUDGE SMITH: If I - - - if I ask you a question that I expect to be an annoying question, and is likely to be an annoying question, am I committing a misdemeanor by asking the question?
MR. RIVELLESE: No, because there's no writing. The aggravated harassment - - -
JUDGE SMITH: Oh, but - - - oh, but if I submitted the question in writing, it would be a misdemeanor?
MR. RIVELLESE: Well, if - - - if you conveyed to somebody. So if you e-mailed somebody or you wrote a letter - - -
JUDGE SMITH: Really? Really?

The delineation is obviously foggy if saying something is no crime, but writing it down is. Further on:

JUDGE SMITH: If I e-mail someone an annoying question, I get a year?
MR. RIVELLESE: Well, it has to be likely to annoy, harass, or alarm - - -
CHIEF JUDGE LIPPMAN: So if Judge Smith put what he's asking you now in writing, this is a crime?
MR. RIVELLESE: I'm not annoyed. I'm not annoyed. So I'm fine.
CHIEF JUDGE LIPPMAN: Oh, okay, you're not annoyed. Okay. It might have been mis - - -
JUDGE SMITH: Give me - - - give me time.
MR. RIVELLESE: The proper discussion - - -
JUDGE ABDUS-SALAAM: Counsel, is it that subjective that the person who receives the question has to feel that it's annoying?
MR. RIVELLESE: Well, no, it is - - - it's reasonableness.
JUDGE ABDUS-SALAAM: It has to have an objective right.

So it would appear. Objective but not subjective, but in this case, with the impersonation of another person, Rivellese seems to feel that it's actually more a subjective problem, especially when it's not even the victim who's being directly targeted. And the "intent to annoy and alarm" exception to the First Amendment should be enforced even if the speech is about a person rather than directed at a person.

JUDGE PIGOTT: But as a third - - - you're saying there can be a third-party aggravated harassment.
MR. RIVELLESE: Yes, if still - - - there's still an intended victim.
JUDGE PIGOTT: So if - - - well, that's I - - - you get - - - you get three college kids - - - 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 - - -
JUDGE PIGOTT: Really?
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.

This is what alarms Volokh. The narrow targeting of the First Amendment exceptions are being broadly read by prosecutors. This is the sort of expansion -- one that pushes behavior normally subject only to civil actions into criminal territory -- that invariably makes its way into newly-crafted laws targeting online behavior.

Here's what Volokh originally said about the decision that's now being appealed.

Intentionally trying to make others believe that someone did something (write an e-mail) that he did not inflicts specific harm on that other person, whether by harming his reputation or at least by making others think that he believes something that he doesn’t (which will often be civilly actionable under the false light tort). To be sure, that usually leads to civil liability, but nothing in the Court’s decision suggests that criminal liability in such cases is impermissible, especially when the law is limited to relatively clearly identifiable falsehoods, such as falsely claiming to be someone you are not.

That's much more limited than what the prosecutor's arguing. His argument removes the limitations (falsehoods and false impersonation) and suggests that nearly any attempt to harass or annoy someone is a criminal offense. This is on top of his claim that there's a clear delineation between oral and written speech, with the latter being the more "criminal" of the two. It's this sort of broad reading that makes nearly every new cyberbullying/harassment law a handy new tool to criminalize a vast swath of online behavior.

032514 72 Oral Argument Transcript (PDF)032514 72 Oral Argument Transcript (Text)

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Filed Under: annoying, first amendment, free speech, harassment, lawrence schiffman, normal golb, raphael golb

17 Comments

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Anonymous Coward, 11 Apr 2014 @ 8:08am

So two people get in a pissing contest and then escalate to a legal attempt to leave scorched earth in the process. Where have I heard similar before?

It must have been that site Techdirt. /s
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silverscarcat (profile), 11 Apr 2014 @ 8:09am

Well, if that's the case...
Then we should arrest the entire U.S. government for annoying me, especially since most of the stuff they put down is in writing.
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Anonymous Coward, 11 Apr 2014 @ 8:10am

Dammit
This pretty much covers everything I've written online for the past several decades. I suppose I'll be charged with 62,781 counts.
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Wally (profile), 11 Apr 2014 @ 8:16am

Re: Well, if that's the case...
Harassment via proxy aliases should NEVER be covered by the First Anendment when concerning academic works and opinions. This is especially when it affects the opinions of others...and steers arguments to one opinion through the actions of a single person representing him or herself as many people.
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ThatFatMan (profile), 11 Apr 2014 @ 8:18am

Restraining orders for everyone!
This case somehow reminds of something I heard a lawyer say in court once. The lawyer, defending a man from a restraining order based on a written statement he made, argued that at best the statement was annoying. And, if annoying someone was the bar by which we measured the need for a granting a restraining order then at some point all of us would inevitably possess a restraining order. The Judge agreed and denied that restraining order. It's good to see that there are more Judges out there who understand the concept that not being annoyed is somehow a fundamental right you have and anyone who violates your non-existent right is instantly guilty of a crime.

Remember, you do not have the right to not be offended. The sooner people re-learn this, the better off all of us will be.
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Anonymous Coward, 11 Apr 2014 @ 8:25am

Re: Re: Well, if that's the case...
"Harassment via proxy aliases should NEVER be covered by the First Anendment when concerning academic works and opinions."

Who defines "harassment"? What are the objective criteria for it?

And why give special protection to academia?

What if they're real (human) proxies?

"This is especially when it affects the opinions of others [...]"

How is that measured? Who measures it? What if it affects their opinions positively instead of negatively? And does it matter if it's true or false?

What about THIS POSTING, which will show up as from "Anonymous Coward" -- which is of course an alias shared by many people here -- and might be considered harassment by some idiot out there?

My point being, in case you haven't caught on by now, that your assertion is irrevocably flawed.
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Anonymous Coward, 11 Apr 2014 @ 8:50am

It not the harassment charge that is dangerous, it is making it a criminal rather than civil offense that is. It would give a weapon to the rich and powerful to use the police to silence their critics.
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Anonymous Coward, 11 Apr 2014 @ 9:09am

It looks like Popehat only commented on the threat letters to Volokh Conspiracy and Simple Justice, but did not itself receive a letter.
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Zonker, 11 Apr 2014 @ 11:57am

I find Mr Rivellese's written statements in the transcript to be annoying. As such, I would like to charge Mr Rivellese with misdemeanor aggravated harassment for annoying me in writing.
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Charles Pelowski, 11 Apr 2014 @ 12:36pm

What about the First Amendment?
Don't I have a first amendment right to be annoying? I've had a problem with a similar Texas statute for quite some time. See Tex. Pen. Code � 42.07. That statute proscribes any sort of obscene comment conveyed
"by telephone, in writing, or by electronic communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene."
This statute also requires that the communication be made with the intent to "harass, alarm, annoy, etc."

So I guess if I tell my governor to shove this law up his ass, I've probably committed a misdemeanor. Seems like something I probably have a right to do under the First Amendment as political speech is protected speech.

Home of the Free indeed...
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John Fenderson (profile), 11 Apr 2014 @ 2:14pm

Re: What about the First Amendment?
This is the case the prosecutor is making. From the transcripts of the questioning from the judges, it seems like they aren't buying it.
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NakkiNyan, 11 Apr 2014 @ 6:54pm

Their issue is going for the wrong offence for the sake of a harsher punishment. Get the brat for libel and Criminal Impersonation �assuming a false identity with the intent to defraud another.
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Anonymous Coward, 11 Apr 2014 @ 9:09pm

Re: Dammit
Never mind you, the usual trolls can all be hauled in based on that pretext.
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Pragmatic, 14 Apr 2014 @ 7:24am

Re: Restraining orders for everyone!
Remember, you do not have the right to not be offended..

^This. A thousand times this.

Impersonating a person in order to perpetrate a fraud is one thing, and should be treated as such, but trying to sneak anti-offense laws in through the back door should be stomped on, and hard.

Notice that I wrote, "to perpetrate a fraud."
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Hot Corn (profile), 14 Apr 2014 @ 11:51am

Re:
There is a basic misunderstanding in this article, one that is symptomatic of the unfortunate misrepresentation of the facts of this entire case in the media. The harassment charges had NOTHING TO DO with anybody being impersonated; rather, those charges criminalized anonymous (or pseudonymous) email complaints sent to various academics, including colleagues of Eugene Volokh at UCLA. They were cleverly used by the prosecution to poison the trial atmosphere by criminalizing Golb's entire Internet campaign. Volokh casually disguises this fact in his various pieces devoted to the case, and he should know better. For further information on the case, see the documentation at: http://raphaelgolbtrial.wordpress.com/
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Hot Corn (profile), 14 Apr 2014 @ 11:59am

Re:
This would very much depend on the meaning of the term "intent to defraud," which is the central issue in the case. The prosecution would like to replace "defraud" with "deceive," and so far the courts have gone along with this. It's an extremely dangerous precedent, one that actually makes this seemingly trivial case into one of the most important criminal prosecutions in American history.
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Hot Corn (profile), 14 Apr 2014 @ 12:13pm

Re: Re: Well, if that's the case...
Many famous intellectuals have used multiple aliases to "steer opinions." The NACDL amicus brief is far more to the point when it says that �if Schiffman and others like him feel aggrieved by online speech with academic value, they have adequate remedies in tort,� rather than in the criminal courts.

See: http://raphaelgolbtrial.files.wordpress.com/2011/11/raphael-golb-amicus-brief.pdf

This being said, let's consider Golb's actual intent, which has been systematically obfuscated in media articles about the case (including, unfortunately, in Tim Cushing's otherwise excellent article). Indeed, Golb's intent was also obfuscated at the trial, since the prosecution concealed the pertinent evidence from the jury. Here is what we read in the most recent pleadings:

On August 4, 2008, Golb informed his brother that he had written �an article exposing [one complainant�s] plagiarism.� (SA-926). During the same period, he informed his mother of his concern that a �skewed pair of lecturers� would �egregiously misinform the public.� (SA-921). To counter this danger, he pointed out that his father, unlike the other lecturers, could give a lecture �at no cost to the museum.� (SA-921). The previous year, he had already explained to his brother that he believed his letters of complaint to UCLA faculty members would �embarrass� [another complainant] �by informing people of the truth (which many of them might not know).� (SA-990).

See p. 8 of the reply brief: http://raphaelgolbtrial.files.wordpress.com/2014/01/raphael-golb-reply-brief.pdf
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