“Every citizen may freely speak, write and publish his or her sentiments on all subjects….” Article I, Section 8, Constitution of the State of New York
“He knows how to twist language, stir up controversy. As a result, what he can do is … devious and disturbing…. There is no way to sugarcoat this, the defendant is a menace….” Prosecution’s summation, Trial of Raphael Golb, transcript at 1246
The defendant’s “criminal intent … brought you a parody over the line.” Judge Carol Berkman, Trial of Raphael Golb, Sentencing Hearing transcript at 30
Can an Internet blogger, consistent with the Constitutions of New York and of the United States, be arrested and prosecuted for criticizing, in pseudonymous postings, the conduct of the creators of a museum exhibit, and for lampooning a well-known academic figure in a satirical email hoax?
Does so-called “malicious” mimicry — in this instance, personification that prosecutors and criminal court judges consider not “humorous” or “clear” enough — result, under American law, in the commission of a crime of deceit and provocation, punishable by a lengthy term of imprisonment at Rikers Island?
Does an act of imitative mockery need to be “just for fun,” as New York City prosecutors are arguing, to be constitutionally protected?
June 18, 2013 update: Defense counsel Ronald Kuby has filed an appeal brief with the New York Court of Appeals in Albany, where the Dead Sea Scrolls “trial” verdict will be reviewed. At the core of the case lies the charge that Raphael Golb committed crimes by targeting then-NYU department chairman Lawrence Schiffman in an email hoax in which Schiffman was portrayed as admitting to plagiarism.
“My instincts for free speech and freedom of expression all militate in Golb’s favour, yet… a great deal will depend on very finely-balanced semantics, which makes me believe that the court of appeals will be rather reluctant to set aside this judgment. However, to jail a man for this kind of incident is perfectly ludicrous.” Walter Cairns, Lecturer in Law, Manchester Metropolitan University
In response to Mr. Kuby, prosecutors will now reiterate their claim that “deceitful” intellectual provocation is a crime, and that putting a fake “confession” of plagiarism in the “mouth” of a well-known NYU department chairman constitutes a legally cognizable “injury” — even if it turns out that the department chairman did indeed commit plagiarism, was first accused of doing so by an Israeli journalist in an article published in Hebrew in 1993, and concealed that accusation from his NYU colleagues and superiors.
They will, simultaneously, claim that the trial court correctly allowed the prosecution to argue to the jury that Raphael Golb made “false accusations” despite the court’s own pretrial ruling that “neither good faith nor truth is a defense to any of the crimes charged.” (Note: the prosecution’s search and arrest warrants, signed under oath by a New York City police officer on behalf of the District Attorney, already declared that “the allegations of plagiarism are false.” At trial, Golb’s attorneys were blocked, pursuant to the “neither good faith nor truth” ruling, from introducing any evidence that the allegations are true.)
Further, the prosecutors will seek to convince the judges that anonymous email complaints about an academic controversy may be criminalized as “aggravated harassment” on the ground that they are “annoying” to the individuals whose conduct is criticized in them. The Manhattan District Attorney’s arguments with respect to all of these issues will be posted on this site when they become available.
The original appeal of the trial verdict was filed by Mr. Kuby on March 16, 2011: that brief may be read here. Seventeen months later (August 8, 2012), NYC prosecutors filed a 96-page response, arguing that Raphael Golb deceitfully “promoted” his father’s “unpopular” research and engaged in an elaborate scheme to fraudulently procure $1,000 by trying to get his father invited to participate in a lecture series at the Jewish Museum in New York through a “smear on the reputation” of Dr. Lawrence Schiffman. A reply by Mr. Kuby followed.
In a summary decision, a panel of judges of the First Appellate Division in NYC then rejected the $1,000 felony count as based on “speculation,” but left the many other charges in this case intact pending further appellate review, including multiple “harassment” counts criminalizing pseudonymous email complaints sent to several academic departments (emails that involved no impersonation whatsoever).
Most importantly, the panel left intact an additional felony count, premised on the idea that Raphael Golb intended to “falsify the business records” of New York University by sending out fake “Gmail confessions” that initially appeared as if they were written in Lawrence Schiffman’s voice.
The First Appellate Division decision offers no analysis of the harassment charges or “business records” felony charge, resting its broad decision on the conclusion that the email impersonations involved in several of the counts did not constitute “parody.” The court bases its conclusion on a two-part “test” for parody applied in a trademark case. Thus, for the first time in an American court of law, a parody “test” developed in trademark litigation has now been applied in the context of a criminal prosecution.
The decision also asserts that Raphael Golb was prosecuted not for the content of his criminalized texts, i.e., for his speech, but merely for the act of creating the “impression” he was someone else. This distinction is puzzling in view of the jury’s determination that Raphael Golb intended to “injure” another or to obtain an illicit “benefit.” If Raphael Golb, while giving the “impression” he was another, had sent out a text stating merely “I wish you all a good summer,” would he have been charged with crimes?
Schiffman, currently a vice provost at Yeshiva University, is a former NYU faculty member who, until shortly after the Raphael Golb trial, served as chairman of the Jewish Studies department at that institution. Schiffman was originally accused of plagiarism by Israeli journalist Avi Katzman in 1993; certain letters written by an attorney representing him have become a topic of conversation on the blogs of Eugene Volokh and Scott Greenfield. Schiffman’s departure from NYU is discussed in a recent editorial by Ronn Torossian.
According to a Tablet Magazine exposé by Batya Ungar-Sargon, “in a recent telephone interview, Schiffman himself insisted that he suffered no harm” from being portrayed as admitting to plagiarism.
Leave to appeal to Albany was granted in a short order by Judge Eugene Pigott of the New York Court of Appeals. Previously, Mr. Kuby’s First Appellate Division reply brief addressed the prosecution’s argumentation in the light of recent U.S. Supreme Court case law; these cases are ignored in the NYC First Appellate Division’s decision. Meanwhile, a discussion by Prof. Norman Golb of the Manhattan District Attorney’s salient assertions and innuendos about his research has appeared, along with a pertinent appendix, on the website of the Oriental Institute of the University of Chicago. This supplements Prof. Golb’s open response to the “confidential letter” submitted by Lawrence Schiffman to prosecutors and to NYU officials, and withheld by the prosecutors from defense counsel until the eve of trial.
Some of the basic legal issues at stake:
Whether the use, in Internet blogs and emails, of pseudonyms and satirical mimicry or mockery can, consistent with the First Amendment of the United States Constitution, be criminalized as a “fraudulent scheme to promote a theory”;
Whether a defendant may be prevented, on the ground that the “truth” is not a “defense,” from introducing evidence that his pseudonymous Internet statements were true, when the prosecution is allowed to suggest, approximately 170 times, that the defendant made “false accusations” (see the table appended to Raphael Golb’s account of his trial);
Whether prosecutors and courts may play a censorial role, make judgments about the value of speech, and decide which critical statements, or which forms of verbal criticism, venting, or otherwise “annoying” expressive conduct, do or do not have social utility.
Read: Raphael Golb on his night in the Rikers Island jail; six more months to follow if verdict upheld on appeal. Surrender to Rikers is currently stayed pending further appellate proceedings.
All of the appeal briefs point to a list of 90 similar examples, never before criminalized in the United States.
The reply brief and the current brief filed with the Court of Appeals in Albany point to an updated list of additional examples.
Press accounts of the case include a New York Times item by Jim Dwyer and a lengthy article by John Leland. Mr. Leland’s article contains several inaccurate quotations and additional errors, including the false and misleading assertions that Prof. Norman Golb’s research has attracted no support “from any major academics in the United States,” and that Prof. Golb “posted an article… complaining” that a film shown at a museum “ignored his theory.” Prof. Golb’s article, which was posted, following appropriate review, by personnel of the Oriental Institute of the University of Chicago, contains a detailed critique of the film in question; it can be read here, and a revised version of it is available here.
For the underlying dispute concerning research ethics and exhibitions of the Dead Sea Scrolls, see Prof. Golb’s op-ed and, in particular, his open response to the “confidential letter” submitted by Lawrence Schiffman to prosecutors and to NYU officials; Schiffman’s letter is available here. See also the account (by a “major academic”) at pp. 4-5 of the recently published volume of essays honoring Golb:
Institutions and museums, international conferences and books may ostracize the scholar who transmits a new message… A crisis emerges… The paradigm shift is not peaceful because the adherents of the old paradigm defend it with sword and buckler. A battle takes place, with the adherents, institutions, and power of the old paradigm arrayed against revolutionaries. Eventually, when the dust settles, the new paradigm gradually gains adherents and replaces the old.
Appendix: The parenthetical page numbers in Mr. Kuby’s original First Appellate Division appeal brief refer to pages in the following appendices:
A few additional pages are included in the New York Court of Appeals complete appendix, including, e.g., page 144 from the trial transcript (A-366a) where Lawrence Schiffman, at the time an NYU department chairman, testified that “no one reads” the NYU faculty code of conduct.
Erratum: At pp. 69-70 of the original First Appellate Division brief, the words:
concluded a lecture at the Society of Biblical Literature by suggesting …
concluded an “exclusive” that he submitted for publication to Archeology Magazine by suggesting …
Judge Carol Berkman’s pre-trial order of February 11, 2010 (“neither good faith nor truth is a defense to any of the crimes charged”; “various ‘benefits’ suggest themselves, but there is no requirement that the benefit be financial or that the People specify further.”)
Raphael Golb can be contacted at email@example.com.
The following are reproductions of official (uncorrected) trial transcripts of testimony of the principal witnesses in the trial of Raphael Golb, preceded by the Grand Jury testimony of Prof. Lawrence Schiffman. The files are all in pdf format.
Grand Jury minutes: