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The Raphael Golb appeal brief and related documentation (updated May 13, 2014)
“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
“Neither good faith nor truth is a defense to any of the crimes charged.” Judge Carol Berkman, pretrial order, February 11, 2009
“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
“This statute, literally understood, criminalizes a vast amount of speech that the First Amendment protects.” Chief Judge Jonathan Lippman, Dissenting Opinion in New York Court of Appeals Decision, People v. Raphael Golb at 2
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 deadpan imitative mockery need to be “just for fun,” as New York City prosecutors are arguing, to be constitutionally protected?
May 13, 2014 update: The New York Court of Appeals (New York State’s highest court, located in Albany), following its review of the “Dead Sea Scrolls trial” verdict, has issued a decision in the case, portions of which will now become the subject of further litigation in the federal courts and possibly in the United States Supreme Court. In sum:
(1) The court vacated Raphael Golb’s remaining “identity theft” felony conviction, and remanded the case for resentencing.
(2) In a rebuke to prosecutors that will have an immediate impact on many other cases, the court held that New York Penal Law § 240.30(1) is unconstitutional, and accordingly vacated all of Raphael Golb’s “aggravated harassment” convictions.
(Note: according to former prosecutor Scott Greenfield, these charges had the effect of “wreaking prejudicial havoc and deflecting attention from the real issues….” For example, the charges pertaining to the alleged “aggravated harassment” or criticism of Dr. Robert Cargill were, we now learn, unconstitutional; yet prosecutors placed considerable emphasis on the alleged wrongs done to Dr. Cargill and on his testimony during the trial.)
(3) The court vacated the “unauthorized-access-to-a-computer” conviction, as well as various impersonation convictions that criminalized the mere opening of email accounts from which no messages were sent.
(4) The court affirmed a set of criminal impersonation and forgery misdemeanor convictions, on the ground that the defendant allegedly sought to harm the reputations of some of the complainants. “Deceitfully” deadpan satirical impersonation thus remains a crime in New York, pending the outcome of further appellate litigation.
(5) However, the court’s chief judge, Jonathan Lippman, dissented from the majority opinion, arguing that the statutes invoked are “unconstitutionally broad, and substantially so,” and that “criminal libel has long since been abandoned, not least of all because of its tendency in practice to penalize and chill speech that the constitution protects….” According to the chief judge, “the use of the criminal impersonation and forgery statutes now approved amounts to an atavism at odds with the First Amendment and the free and uninhibited exchange of ideas it is meant to foster.”
These key legal issues will now undoubtedly be the focus of a certiorari petition to the United States Supreme Court and, should certiorari be denied, of a habeas corpus petition to the appropriate federal court.
[June 12, 2014 update: attorneys Ron Kuby and Joel Rudin have filed a motion for reargument with the Court of Appeals, on the ground that the court's decision ignores binding New York and U.S. Supreme Court precedent in Aston v. Kentucky (1966) and other cases.]
Discussions of the Court of Appeals decision and its potential legal impact include an Associated Press account, an article in Reason, and another on former prosecutor Scott Greenfield’s Simple Justice website.
The court’s majority and dissenting opinions were published following the court’s review of an amicus brief filed by the National Association of Criminal Defense Lawyers, an appeal brief by defense counsel Ronald Kuby, a response to the appeal by prosecutors from the Manhattan District Attorney’s office, and a reply to the prosecutors’ legal and factual claims by Mr. Kuby. 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.
A hearing on the case was held at the Court of Appeals on March 25, 2014; click here for the transcript, and here for the video webcast of this tense oral argument. Accounts of the argument include a New York Law Journal article by Joel Stashenko; see also the commentary by former prosecutor Scott Greenfield.
“My instincts for free speech and freedom of expression all militate in Golb’s favour… To jail a man for this kind of incident is perfectly ludicrous.” Walter Cairns, Lecturer in Law, Manchester Metropolitan University
In their response to Mr. Kuby’s appeal brief, prosecutors had reiterated 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.
(Note: already before the trial, the prosecution’s search and arrest warrants, signed under oath by a New York City police officer on behalf of the District Attorney, declared that “the allegations of plagiarism are false.”)
Schiffman, currently Vice Provost of Undergraduate Studies 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 Dr. Avi Katzman in 1993 (see Haaretz, Musaf, p. 50, Jan. 29, 1993). Certain letters written by an attorney representing Schiffman have become a topic of conversation on the blogs of Eugene Volokh and Scott Greenfield, where the suggestion is made that these letters concerning Schiffman are an example of the Barbara Streisand Effect.
In their response to Mr. Kuby, the prosecutors also argued that the District Attorney was properly allowed to argue to the jury, throughout the trial, that Raphael Golb made “false accusations,” despite the trial court’s pretrial ruling that “neither good faith nor truth is a defense to any of the crimes charged.” At trial, Golb’s attorneys were blocked, pursuant to that ruling, from introducing any evidence that the plagiarism allegations are true.
Further, the prosecutors sought (as it turns out, unavailingly) 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.
On the other hand, the National Criminal Defense Lawyers Association amicus brief, authored by Marc Fernich, bluntly opposed the prosecutors’ approach, and asserted that “not a single case” exists in which New York’s criminal impersonation statute has been interpreted as extending “to the kind of abstract and amorphous benefits and injuries alleged here.”
Calling the prosecution of Raphael Golb “unprecedented and inappropriate,” the amicus brief argued 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. It is, the brief went on to assert, wrong to “jail the actor for causing a bruised ego or, at worst, diminished credibility as a scholar”; if Raphael Golb’s conviction stands, “virtually anyone who impersonates others on the Web for wholly innocuous reasons” can be unjustly arrested, prosecuted, and incarcerated.
Similarly, Mr. Kuby, in his reply to the prosecutors, focused on the widespread phenomenon of fake social media accounts and communications (such as fake tweets in the “name” of various university presidents), as well as on the “deceitful” Internet hoaxes engaged in for polemical purposes by the Yes Men and similar groups and individuals; Mr. Kuby argued that if Golb’s conviction stands, all of this can be criminalized.
In a “Counter-Statement-of-Facts” with which the reply begins, Mr. Kuby discussed the Manhattan District Attorney’s salient assertions and innuendos about Professor Norman Golb’s research and, more generally, the prosecution’s ongoing efforts to lead the court “far afield of the legal issues before it by engaging in a persistent and far-sweeping attack on Raphael Golb’s character and on that of his entire family.”
In this regard, Mr. Kuby signaled various statements by Raphael Golb that directly express his intent, in his own words, to “expose” the misconduct of others, to “inform people of the truth,” and to prompt debate concerning a situation that “egregiously misinforms the public.” These direct statements by Raphael Golb, systematically concealed by the prosecution, are sometimes found in the same — or in more complete versions of — email threads from which the prosecutors have culled and patched together casual banter to suggest that Raphael Golb intended not to expose misconduct and inform the public, but to “harm” various scholars.
An appendix attached to Mr. Kuby’s reply contains a letter, dated June 3, 2009, from University of Chicago counsel to Lawrence Schiffman’s principal co-complainant Robert Cargill, informing him that his demands that the University remove from its website an article by Professor Norman Golb were perceived as “threats of nuisance litigation,” and urging him to “respond to Professor Golb openly and on the merits, rather than attempting to silence academic commentary and criticism through legal posturing.”
A pertinent discussion by Professor Norman Golb is available on the website of the Oriental Institute of the University of Chicago. This supplements Professor Golb’s open response to the “confidential letter” submitted by Lawrence Schiffman to prosecutors and to NYU officials, and withheld by prosecutors from defense counsel until the eve of trial.
Lawrence Schiffman’s departure from NYU has been discussed in various news items and in an 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.
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 of incarceration were to follow if the felony convictions had been upheld on appeal. Upon remand for resentencing, Judge Laura Ward imposed a sentence of two months, to commence on July 22, 2014. However, on July 21, 2014, Justice Helen Freedman of the First Appellate Division in New York stayed the sentence pending further appellate litigation.
All of the appeal briefs point to a list of 90 similar examples, never before criminalized in the United States.
The briefs 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 authored by Dr. Robert Cargill and shown at a museum exhibit “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.
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. According to Mr. Kuby’s appeal briefs, 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?
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.
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 firstname.lastname@example.org.
From → Freedom of Speech