Skip to content

The Raphael Golb case, 2009-2018: a new restriction on the First Amendment, and related documentation (updated April 16, 2018)

November 5, 2011

When you parody and satirize someone on the net, that is your absolute constitutional right. It may not be a nice thing to do, but it is no crime, no foul and no cause of legal action. We are surprised that this matter will go to criminal trial.” Tzvee Zahavy, blog, August 7, 2010

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

Neither good faith nor truth is a defense to any of the crimes charged.” Judge Carol Berkman, pretrial order, February 11, 2010

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

“Golb never should have had to face criminal charges…. No critic should serve prison time because he intended to, or in fact did, disparage others, even if he does so by posing as someone else. That is a reasonable principle to draw from more than fifty years of First Amendment jurisprudence.” Arthur S. Hayes, “Raphael Golb Is Facing Jail Time — For Parodying a Dead Sea Scrolls Scholar,” in the Forward.

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 Dead Sea Scrolls 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 term of incarceration in the Rikers Island penitentiary?

Does an act of deadpan imitative mockery need to be “just for fun,” as New York City prosecutors are arguing, to be constitutionally protected?

April 16, 2018 update: New York Criminal Court Judge Laura Ward has refused to impose a jail sentence on Raphael Golb, thus halting the Kafkaesque efforts of prosecutors to have Golb incarcerated for engaging in an academic email parody, and abruptly concluding a criminal-law saga that had lasted nearly a decade. The final, technical disposition of the case: three years of probation that were already served.

Previously, on August 31, 2017, aspects of the prosecution were, nearly nine years after Golb’s arrest, the subject of a decision by the Second Circuit Court of Appeals, in which the federal court, parsing and evaluating the content of various emails sent by Golb, concluded that of the many charges and convictions pertaining to six original academic complainants, only those involving a single academic — Professor Lawrence Schiffman of New York University — were constitutionally viable.

Upholding criminal convictions for Raphael Golb’s deadpan mimicry of this single complainant, the Second Circuit left intact the previous ruling of the New York Court of Appeals that the government has the right to criminalize mimicry of academic public figures “deceitfully” engaged in with the intent to “damage reputations.”

That intent, according to the Second Circuit’s decision, is different from the mere intent to convey an “idea,” which cannot be criminalized. Furthermore, impersonations that are merely “puerile” also cannot be criminalized. The panel, however, refused to extend constitutional protection to parodies that are not “recognized” as such. Thus, authors of parody emails are now advised to make sure that their writings are easily recognizable as parodies, that they are sufficiently “puerile,” and/or that they only express “ideas” that cannot harm a reputation; otherwise, they risk prosecution and incarceration.

A new legal reality results from this decision. While it is not a crime in New York to send out an anonymous Gmail or tweet falsely stating “Dear faculty members, it has come to my attention that Professor X is sending out emails in which he seeks to suppress the allegations that he violated your faculty code of conduct,” it is now a crime to send out provocative Gmail messages or tweets that at first sight seem to come from X, in which X is portrayed as seeking to suppress such allegations.

The rational for this distinction does not seem readily apparent, as both forms of communication generate the same impression and are capable of “harming a reputation.” Nevertheless, as a result, the New York courts have now succeeded in carving out an important new restriction on First Amendment rights. Discussing the Raphael Golb case in a chapter of his recently published book entitled “Censorship Redux: The 21st Century Attack on the First Amendment Right of Public Criticism by the Use of Cyberharassment, Cyberstalking and Online Impersonation Laws,” media-law and journalism specialist Arthur Hayes writes that the New York Court of Appeals’ justification for imposing the restriction — “Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property” —

is an unconvincing and clumsy sidestepping of First Amendment and New York state precedents. In effect, the court carved out in cursory fashion an exemption from the First Amendment for speech with academic value — or scholarly debates.

But why stop with scholars? Don’t, say, authors, priests and Buddhist monks, ethicists and artists, political and ideological purists value their reputations as much as their property, oftentimes more so? They do, of course, but the court did not consider them. It drew a constitutional line with little justification. Moreover, if … reputations … were injured, civil actions — libel lawsuits — were the constitutionally appropriate recourse. (Op. cit., p. 160.)

The Second Circuit’s decision to leave the new precedent intact — a decision the panel of three judges claimed to have reached pursuant to the strictures imposed on federal courts by the “Anti-Terrorism and Effective Death Penalty Act” of 1996 — followed the filing of an appellate brief, a response by the District Attorney of Manhattan, and a reply that discussed certain “innuendos, omissions, and distortions” that had characterized the District Attorney’s treatment of this case over the course of seven years. At a hearing on the matter that took place at the court on June 23, 2017, Judge Pierre Leval compared Golb’s intent with that of someone who “shoots a gun out there to enjoy the pleasure of shooting the gun”; an audio recording of the hearing is available here.

41 of the original 51 counts brought to trial having been vacated, what finally remained of the case was the charge that Raphael Golb committed crimes by targeting Lawrence Schiffman in a Gmail hoax in which then-department-chairman Schiffman was portrayed as commanding recipients to suppress discussion of a “minor failing” (to wit, plagiarism) and as justifying his alleged misconduct on the grounds that “if I had given credit to this man, I would have been banned from conferences around the world.”

Note: Schiffman was originally accused of plagiarism by Dr. Avi Katzman, an Israeli journalist, in 1993 (see Haaretz, Musaf, p. 50, Jan. 29, 1993). According to an 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. Yet it is Schiffman who filed the criminal complaint pursuant to which Raphael Golb was indicted and prosecuted.

In January 2011 (approximately two months after the Raphael Golb trial), Schiffman resigned from his NYU Jewish Studies department chair and took a position as Vice Provost of Undergraduate Studies at Yeshiva University; he served in that capacity for three and a half years before returning to NYU, where he is currently the Judge Abraham Lieberman Professor of Hebrew & Judaic Studies. Schiffman’s departure from NYU was discussed in various press reports and in an editorial by Ronn Torossian. During Schiffman’s absence from NYU, certain letters written by an attorney representing him became a topic of conversation on the Simple Justice and Volokh Conspiracy law blogs, where the suggestion was made that these letters were an example of the Barbara Streisand Effect.

In his above-cited book, Professor Hayes justifies Raphael Golb’s emails on moral grounds, suggesting that they contained a “parody of academic ‘politics'” and stating that “parody, satire and other forms of outrageous speech have the capacity to reveal truths that provide valuable information and wisdom about the human condition that may yield great benefit to substantial portions of any community.” (Id., pp. 156, 175.)

The Second Circuit Court of Appeals decision, however, denies that Raphael Golb’s criminalized messages contain parody. The decision presents the messages in deadpan manner, omits their more obviously satirical portions, and fails to address the question of whether reasonable people would seriously believe a university department chairman had sent out communications justifying plagiarism and demanding that students be prevented from seeing an article prominently linked in the emails. The decision summarily distinguishes “parodies” from “hoaxes,” but does not address the grey zone lying in-between: the phenomenon of satirical hoaxes used to convey ideas and criticism.

The United States Supreme Court having denied certiorari on February 20, 2018, no further appeals are possible in the case.

The underlying academic dispute:

For the underlying dispute concerning research ethics and exhibitions of the Dead Sea Scrolls, see Prof. Norman Golb’s op-ed and, in particular, his open response to the August 29, 2008 “confidential letter” submitted by Lawrence Schiffman to prosecutors and to NYU officials; Schiffman’s letter (which was withheld by prosecutors from defense counsel until the eve of trial) is available here.  See also the account (by one of the world’s foremost Judaica scholars) at pp. 4-5 of a volume of essays honoring Norman 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.

For further information on the academic context of the Raphael Golb trial, see the “About” and “Trial Testimony of NYU Officials” sections of this blog.

The Second-Circuit Appendix

The Second Circuit appeal brief was accompanied by an appendix consisting of six separate volumes (one, two, three, four, five, six), which may serve to give an idea of the ample resources that the City of New York saw fit to devote to the problem of inappropriate electronic mimicry over a nine-year period, while “high-profile” investigations involving certain individuals were dropped.

The decision of the New York Court of Appeals

In May of 2014, the New York Court of Appeals (New York State’s highest court, located in Albany) issued a decision in the case, portions of which have been left intact by the federal court. The decision was authored by the late Judge Sheila Abdus-Salaam; it appeared approximately two weeks after the suicide of her brother, and nearly three years before her own suicide by drowning on April 12, 2017. In sum:

(1) The Court of Appeals vacated Raphael Golb’s remaining “identity theft” felony conviction; the other one had previously been vacated by the intermediate appellate court in New York City.

(2) In a rebuke to prosecutors that had an immediate impact on approximately 7,600 other cases, the Court of Appeals declared New York Penal Law § 240.30(1) (which criminalized merely “annoying” speech) to be unconstitutional; accordingly, the court vacated 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 academic criticism of Dr. Robert Cargill were patently unconstitutional; yet prosecutors placed considerable emphasis on the wrongs purportedly done to Dr. Cargill and on his testimony during the trial. In an unpublished “exclusive” forwarded to the prosecutors and ultimately entered as a trial exhibit, Cargill stated that it is “unfortunately still true” that the world will only be “rid of [Professor Norman Golb] … when he dies.”)

(Following the Court of Appeals’ decision, Penal Law § 240.30 was rapidly amended to make it clear that it did not apply to unwanted or embarrassing criticism of an academic nature, but only to communications that convey a “threat to cause physical harm … or unlawful harm to … property.”)

(3) The Court of Appeals vacated an “unauthorized-access-to-a-computer” conviction, along with various impersonation convictions that criminalized the mere creation of email accounts from which no messages were sent.  In addition, the court vacated a conviction that criminalized an email signed “Jonathan Seidel” which contained nothing that could be deemed expressive of an intent to “harm” anyone’s “reputation,” but only a sharply worded inquiry critical of a museum exhibit.

(4) The Court of Appeals affirmed a set of criminal impersonation and forgery misdemeanor convictions, on the limited ground that the defendant allegedly sought to “damage the reputations” of some of the complainants — and not, according to the court, merely to cause “momentary embarrassment or discomfort,” which would not be a crime. In creating this standard, the Court of Appeals ignored Golb’s argument that the trial was a disguised criminal-libel prosecution, and failed to distinguish between truthful and malicious harm to reputation.  The trial jury had received no instructions regarding the distinction between “damage to reputations” and “momentary embarrassment or discomfort,” but had simply been told to find Golb guilty if he intended to cause “any harm” or gain “any benefit,” a standard the Court of Appeals found too broad.

Note: Disregarding Ashton v. Kentucky (1966) and other U.S. Supreme Court cases requiring that a new trial be granted when the scope of a statute is narrowed on appeal, the court remanded the case for resentencing.

(5) However, the Court of Appeals’ 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 then became the focus of the federal habeas litigation. Given the ultimate outcome in the federal courts, Albany’s majority decision clearly means that “deceitfully” deadpan satirical impersonation engaged in with the alleged intent to “harm a reputation” remains a crime in New York.  As the authors of one criminal defense blog put it in a comment on the case, “how do you know when you’ve crossed that line? And where in the statutory language… is that line in the first place?” The authors suggest that the Court of Appeals’ majority decision is “arguably an unconstitutional attack on free speech.”

(Note: the Raphael Golb case does not involve any allegations of so-called hacking or, as one press report falsely stated, “hijacking” of anyone’s personal or business emails. For example, the criminalized mockery of Lawrence Schiffman originated from, a Gmail account created by Raphael Golb.)

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 of Appeals’ majority and dissenting opinions were published following its 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. 

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

Read: Raphael Golb’s personal account of his trial.

The New York State appellate pleadings:

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.”)

In their response to Mr. Kuby, the prosecutors argued that the District Attorney was properly allowed to suggest, 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.”  This letter was also included in a discussion by Professor Norman Golb, available on the website of the University of Chicago’s Oriental Institute.

Raphael Golb (Photo: Edwina Ramade)

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 personal 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.

September 3, 2017 update: 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, now, after many delays, set to commence on April 2, 2018.

The phenomenon of satirical Internet impersonation:

The various appeal briefs point to a list of many similar examples never before criminalized in the United States.  Neither of the appellate court decisions address any of this material.

Erroneous press accounts:

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. Further discussion of various news items and their relation to the narrative put forward by prosecutors in this case is posted on the “press releases and news coverage” page of this blog.

Previous pleadings:

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 offered 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 based 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 was applied in the context of a criminal prosecution.

The decision also asserted 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 were 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:

A1-A86–court filings

A87-A207–Raphael Golb blogs

A208-A315–Raphael Golb emails

A316-A331–NYU computer policies

A332-A665–trial testimony

A666-A696–sentencing hearing

A697-A704–public-source references to critical or satirical impersonations

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.

See also:

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.”)

Previous First Amendment briefs

Dead Sea Scrolls controversy memorandum

Raphael Golb can be contacted at

  1. Kenneth Greifer permalink

    I am sorry if this is a repeat, but I don’t think my first comment went through. Is the prosection’s delay normal and is it a good or bad sign?

    • The definition of normalcy, of good and evil, in this situation largely depends on how one feels about the issue of proportionality in our criminal justice system, the expansion or “stretching” of the law by prosecutors, and the varieties of satirical and critical expression and venting found on the Internet. In 2004, the authors of an American Association of University Professors report wrote:

      While the Supreme Court held many years ago that a speaker could be punished for highly provocative face-to-face utterances likely to trigger a violent response—the definition of “fighting words”—there does not seem to be any basis for treating even the most intemperate digital “flaming” in the same way, since the proximate, “in-your-face” risks simply do not exist when the combatants are seated at keyboards an unknown distance apart… Any restrictions that an institution feels it must impose on “acceptable use” [of the Internet] must … be clearly and precisely stated, must be content-neutral and narrowly defined, and should address only systemic abuses by users, such as the posting or sending of material that would cause the system to malfunction or would severely inhibit the access of other users.

      Attitudes seem to have changed in the interim, and one result of the change seems to be the chilling of controversy, and an ensuing lack of public awareness, concerning an important intellectual conflict between religiously oriented, faith-based speculation or apologetics on the one hand, and a rationalist, scientific approach to intertestamental history on the other.

  2. Kenneth Greifer permalink

    What does the Supreme Court ruling on that case about lying about being a military hero mean to your case?

    Kenneth Greifer

  3. This question refers to the Supreme Court’s recently issued decision that the so-called “Stolen Valor” Act is unconstitutional.

    It is, of course, a relief to learn that the Court has rejected the government’s claim (highly disingenuous and indeed, I would submit, dangerous to any liberal democracy) that false statements are generally not protected by the First Amendment. In the majority opinion, Justice Kennedy explains that false statements lack First Amendment protection only in certain specific contexts, which themselves have been limited in specific manners (“the Court has been careful to instruct that falsity alone may not suffice to bring … speech outside the First Amendment.”).

    Readers of Ronald Kuby’s appeal brief will recall that the charges against Raphael Golb involved the criminalizing of an allegedly fraudulent “scheme to influence a debate,” and that much of the argument addresses the issue of what constitutes the fraudulent “benefit” of a “scheme to influence a debate.” The trial judge, Carol Berkman, held that the word “benefit” meant “any gain or advantage,” and that the prosecution did not need to specify what the benefit was. Thus, if the jury found that “any gain or advantage” whatsoever was sought (e.g., scoring a point in a debate, or feeling a sense of satisfaction as a result of stirring up controversy about the Dead Sea Scrolls, or about allegations of unethical conduct in a major university), they were obliged to render a verdict of guilty. Kennedy, however, writes:

    Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment… But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom. (Slip Op. at 11).

    The concurring opinion lists examples of constitutionally protected lies, refers to one of the Ninth Circuit opinions in the case for further examples (which included lying “to make a point”), and states:

    Fraud statutes, for example, typically require proof of a misrepresentation that is material, upon which the victim relied, and which caused actual injury… Statutes forbidding impersonation of a public official typically focus on acts of impersonation, not mere speech, and may require a showing that, for example, someone was deceived into following a “course [of action] he would not have pursued but for the deceitful conduct.” United States v. Lepowitch, 318 U. S. 702, 704 (1943); see, e.g., [18 U. S. C.] §912 (liability attaches to “[w]hoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States . . . and acts as such” (emphasis added)). (Slip Op., Stevens, J. concurring at 5-6).

    (In an incisive analysis of the Supreme Court’s decision, Professor Eugene Volokh explains that even under the concurrence’s “intermediate scrutiny” view, fraud must be “aimed at getting valuable goods or services.”)

    The majority opinion also emphasizes that the lies could simply have been refuted by additional speech:

    The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie… The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth… The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse… Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication. (Slip Op. at 15-17).

    Whether any of this will have any impact, or if it will simply be ignored during the appellate proceedings, remains to be seen. At any rate, the Stolen Valor decision certainly does seem to point to the need for further analysis of the Manhattan District Attorney’s highly original “fraudulent influencing of a debate” theory, and of Judge Carol Berkman’s apparent belief that a parody “crosses the line” and become a crime of deceit and provocation when the joke falls flat, or is not funny or clear enough.

  4. Hi,

    Greetings Raphael, Ron, friends. Steven Avery here, glad to see the update.

    Actually I am not a fan of the Supreme Court “stolen valor” decision. Any sort of solemn lying, on an insurance form, to an interrogator about insider trading, even, yes, on a job application and resume, to many other things, are in fact crimes. Sometimes misdemeanors, sometimes felonies.

    The “stolen valor” law really was simply a legislative expansion of a class acknowledged, and rather more easily defined than many other violations, if it was limited to claiming receiving medals you never received.

    Your situation was quite different, so it might be wise (Ron !) not to mix the two. Nobody, afaik, really accused you of that type of lying. It was just a debate about where satire ends and personal attack (better a civil matter) ends. And the savvy legal beagles would want to give the nod to your side of that equation, due to our first amendment heritage.

    And then there was the weird stuff like “fraudulent influencing of a debate”. Winging it with new law and interpretation by the prosecutor and his friends.

    Now I am not gung-ho on your side on every aspect, I can understand that the NYC prosecutor, if they were not unduly influenced, might have considered filing a low-misdemeanor charge, more with the idea of the equivalent of a juridicial “cease and desist” warning. Or called you in for questioning, to let them know this type of stuff was dubious. (Did they ever do that ? Seems like it could have resolved the matter rather trivially back then.)

    Now I do hope this whole thing ends soon, I think it is pretty clear that some of your opponents have had pecuniary motives (the hope of a civil judgement later). Back then, I asked R.C. about this on his blog and got a resounding silence.

    Anyway, let me catch up on a thread or two. Maybe I can drop in to the next court hearing, if the date is announced. Wishing you well.

    Steven Avery
    Bayside, NY

  5. Hello Steven,
    Thanks for your comments.
    Your analysis on the Simple Justice website was also much appreciated.
    To clarify my own previous comments on the Stolen Valor case: I believe its relevance is limited to the fact that it explains that “fraud” (one of the basic exceptions to freedom of speech) exists only when there is a tangible, material benefit or harm.
    That is a far cry from the trial judge’s ruling in the Raphael Golb case that the fraudulent benefit of the alleged identity theft “need not be financial,” and that the prosecution need not even specify what the benefit was.
    Moreover, the rule that fraud requires reliance (as in relying on the deceitful insurance form, job application, etc.) was also ignored; the defense’s proposed jury instructions in this regard were summarily rejected.
    If, on the other hand, the Court had accepted the government’s argument that lies are simply not protected by the First Amendment, then the prosecution could have seized on that “principle” to justify its refusal to respond to Mr. Kuby’s constitutional arguments, or to offer any of the normal rationale for criminalizing speech (e.g., a compelling state interest satisfied by a narrowly tailored law applying the least restrictive means, etc.).
    No, there never was any warning or cease-and-desist discussion; nor was any cease-and-desist notice ever received from any of the complainants — it would appear that the secrecy of the investigation was paramount. Once the charges were filed, the typical solution in a criminal case would have been an Adjournment in Contemplation of Dismissal — i.e., if the “questionable” acts are not repeated, the case will be dropped. The prosecution refused to accept anything short of a guilty plea to criminal impersonation and harassment. At the indictment, Rule 200.11 was ignored and the case was sent to the specific judge requested by the prosecution.
    Apparently, they considered this a major case, worth a million dollars or so in tax-payers’ money. Hopefully, further pleadings and arguments will shed light on their rationale.

  6. Hi,

    Yes, it does appear quite clear that the pushers of this whole prosecution entered the whole enterprise with unclean hands, that personal positioning .. or governmental (authoritarian) motives .. were manipulating the judicial process (“good” cases making bad law). Something has been fishy.

    btw, I remember seeing some of the posts way back when and was curious. However, I am also very aware that any moderator of an email forum can very easily vet new posters by putting them on moderation for the first few posts. And in fact this is standard operating procedure. Sock puppetry is more a humorous annoyance than anything else. A non-net-tech savvy judge can likely miss the basics.

    Back when I was a bit younger, I got familiar with the “conditional discharge”, which is similar to “Adjournment in Contemplation of Dismissal”. A good way to get the point across, with little muss and fuss (to use some Curtis phrasing). And be careful that Ron and Robert don’t go up to a Woodstock shindig, and reminisce about the days of being zonked in the Socialist Collectives. 🙂 Although I don’t think Ron lets cultural simpatico interfere with a good case. “Shout out … be careful not to sneak into the law library, Raphael “. (By the grace of God, may that never be.)

    Even the little alleged death-defying stunt of sneaking into a library (gasp !) and putting forth the Lawrence Schiffman letter .. it is trivially easy for the person “hurt” to send out an email saying .. “hey, my email was spoofed, that was not me.. (optionally more)”. Or put up a web page (today called a blog, or a facebook notice). Now, I am not approving such an action, but looking back there really is a spot of humor involved. Dissonance satire.

    And I say that not having a “side” on the scholastic matters. btw, I actually like Schiffman on many matters, I saw his little slide down the Dead Sea caves at NYU, heard his talk on Masada, Bar Kochba and coins with the picture of the Temple in Great Neck, chatted with him about Emanuel Tov’s broken-field position on the Hebrew Bible in Queens, and especially like the fact (Great Neck #2) that he does not play games about the crucifixion account, acknowledging that the Sanhedrin could do tricky stuff like a late night special meeting and that religious Jews should not claim the impossibility of the trial as given in the NT (this last is appreciation for the honesty from my Messianic perspective).

    i.e. Whatever went south on this particular issue, hopefully can still be overcome, Cargill gives up his dreams of big $$, settles for a veggie-burger, and you guys can end up having a nosh at the 2nd Avenue Deli, or Caravan of Dreams and Liquiteria.

    Steven Avery

  7. Indeed, there was a spot of humor involved (“you are not to say a word about this!”); a retraction could have been requested, and a simple rebuttal or clarification denying authorship could easily have been issued, as is often done in such situations. But clearly the intent was to seize upon the emails as an opportunity to turn the underlying “stirring up of dispute” (as the prosecution memorably put it) around against the person who was engaged in it. A fine illustration of the old line: methinks the lady doth protest too much.

    One can have a legitimate discussion concerning the quality of Dead Sea Scrolls scholarship or pseudo-scholarship, the core of the controversy, etc. The basic message of the campaign, however, was: if a certain group of people are going to employ publicity tactics using museums and the Internet, without engaging with their opponents who are essentially defined as a subversive, “non-consensual” annoyance, then there’s an answer to that.

    Thus, the issue involved really goes beyond the substance of the scholarly “debate” (I put the word in quotes because any real debate has been largely suppressed). Raphael Golb did not blog about the Jews of Normandy, or other controversies involving N.G.: he perceived the specific, outlandish nature of the DSS situation, and decided to have some fun with it — with unfortunate results as we have seen.

  8. Hi,

    btw, I just want to make a technical correction. Email “spoofing” is a term that technically involves using the person’s actual email addy in the headers. And apparently spoof was also used in another manner in the trial, with the dictionary definition of a hoax or a prank.

    Making a “look-alike” email name functions in a vaguely similar manner, but is far easier to recognize, since the email addy is different than any actual account owned by the user. It would be like sending out a letter from “Profesor Laurence Schifman”, the recipients may be a bit perplexed by the new name and would find it easy to compare and check.

    Look-alikes are rather common in all types of humor. Comedy impersonation, web pages, etc. (A point where semi-tech Ron and his army of legal beagle assistants probably did a rather fine job).

    As I understand, a new account was set up that had never been used by Lawrence Schiffman. As a semi-techie, this is an important distinction, as it involves no hacking of accounts, reading of private emails, etc. And is rather easy to unravel.


  9. Yes, in that technical sense there was no spoof here at all.

    The prosecution’s position was simply that you “cannot use someone else’s name,” as long as allegedly “false” accusations, “deceit,” or “maliciousness” are involved — all of these terrible things clearly being designed to obtain the “benefit” of influencing a debate. Indeed, you cannot even use someone else’s name to open an email address — even if you don’t actually send any messages from the address. The parody defense was ignored, and since, according to the judge, “good faith is not a defense to the crimes charged,” there was never any opportunity to discuss the meaning of the various terms (spoof, hoax, etc.).

    Kuby’s position is that these are all essentially forms of satirical expression, and that the prosecution’s idea of a “benefit” is so broad that ultimately people who engage in any sort of online “impersonation” (see the list of 90 examples) will end up looking over their shoulders in fear of being wrongly or mistakenly prosecuted. The principle at stake here is that even speech that doesn’t “deserve” to be protected cannot be criminalized, if doing so would predictably chill other, protected speech.

  10. Hi,

    You know, if you follow this prosecution “logic” to its logical confusion, you could criminalize any appeal to authority that is done without the personal approval of the one being authoritized. After all, you are using their name, even against their expressed desires.

    And I have actually run into this type of vehement objection when referencing gentlemen in the Bible debate. Basically it comes down to their saying .. “you don’t agree with me on issues A & B, so do not quote me and use my name on C”. You can almost feel their desire to run to a prosecutor, if they had the clout.

    Ok, I am taking this to absurdity. However, it is not hard to take absurdity (“benefit of influencing a debate”, “fraudulent influencing of debate:”) to further absurdity.


  11. Yes. The judge made a show of being terminologically a bit more precise: one cannot “assume” someone else’s name to obtain a benefit. She also declared at sentencing — out of the blue, since this had never been elicited during the trial — that the complainants had felt that their “privacy was invaded.” The underlying expansive waves of something like old-Russia logic (constantly veering between “false confessions,” “false accusations,” and an “invasion” of unwanted criticism) does indeed seem to reflect a more general hysteria induced by the democratic “rough and tumble” of the Internet, and a general feeling among the higher social echelons that “we’ve had enough of this.”

    In an even broader sense, the strategic movement of the trial (the expanding waves) points towards a demand for the cleanliness of a stable “identity”: we must behave like businessmen; there can be no games, no deviousness; everything has to be ordered and defined. Because “everyone knows” that certain individuals are above reproach, and that certain things simply are not done. Don’t forget to wear your tie. That is the new, honest, America announced by the trial — an America where the limp freedom of academic propriety is enforced by law, with the police watching over suspects who “stir up controversy” with “false accusations.”

  12. A note on a case of interest:

    The British High Court has quashed the verdict in the “Twitter joke” case, in which a man was prosecuted for tweeting a “menacing” statement about “blowing an airport sky-high” after the airport was closed on account of bad weather.

    While dealing with the issue of what constitutes a credible threat rather than with “identity theft,” the court’s analysis contains many elements that arguably have a broader application. The statute invoked, says the court,

    did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.

    With respect to the actus reus, the court explains:

    Before concluding that a message is criminal on the basis that it represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent.

    The court further explains that the “threat” must be shown to have been seriously intended. “If the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a … joke in bad taste… then it would be a contradiction in terms to describe it as a message of a menacing character.” The intent must be judged from the perspective of the “reasonable member of the public of normal fortitude.” The question of how “some” people might react to it is inadequate, because that question embraces “everyone, included those who might lack reasonable fortitude.” The fact that no one on Twitter had a fearful reaction to the joke, and the lack of urgency of the officials who dealt with it, are relevant to determining whether it was seriously intended. “A message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably [be] expected to see it… lacks menace.”

    These actus reus grounds, the court concludes, are sufficient to quash the verdict. The court, however, also goes on to indicate that “the mental element of the offence is directed exclusively to the state of the mind of the offender, and that if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established.”

  13. Kenneth Greifer permalink


    I am really sorry to hear about this decision. I can’t believe it. It made me wonder about something. If you had sent all of the same emails with all of the same accusations without any impersonations, but had used your real name, could you have been charged with harassment, etc, or would it have been protected free speech about the Dead Sea scrolls, even if you had accused the professor of plagiarism to his bosses? Is the whole reason that you were found guilty because you used false names and impersonated people?

    Kenneth Greifer

    • It’s difficult to say, because the court’s decision does not mention the harassment counts at all, let alone give any reasoned analysis of them. The case will now be appealed to Albany or the federal courts, where exactly what happened at this trial will hopefully receive more attention, regardless of the ultimate conclusion. So far, one crucial bit of the prosecution’s case has been chiseled away: the suggestion that Raphael Golb intended to gain any financial benefit.

  14. Hi,

    And I agree that that victory is actually rather significant when the case goes to where there is less of a home court advantage. The gain motif was essentially akin to a fraud charge, however fraud would never apply to these actions because it entails (loosely).

    (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.

    It is hard to find any of these elements either involving the people with the similar names or the recipients. The $1000 bogus motive added a criminalization pallor over somewhat flaky but rather innocuous actions that were at times humorous, or at least satirical.

    The other charges become more obviously shaky without the fabrication that “he was in it for the money”.

    The whole definition of criminal impersonation is tied up with facilitating a crime. Thus they may hope that the “business records” charge remains as the underlying crime ?

    However, that is so clearly bogus that you would have to be a NYC prosecutor or crony judge not to see that. Even the emails or flyers that Lawrence Schiffman sends out promoting the next DSS exhibit are hardly NYU or Yeshiva U “business records”. Much less yet third-party gmail bargain (library) basement attempts.

    And then you have the very mushy “harassment”. If you post with conviction on internet forums you will always run into that charge.

    Maybe they should prosecute for “criminal annoyance” ….. find something in the criminal system that is a bit like littering. Then the impersonation could be part of a RICO criminal annoyance conspiracy charge.

    What about a sister impersonating a twin sister to travel? Those are probably interesting “impersonation” cases, when they arise.

    Just some thoughts, and some more here:

    [TC-Alternate-list] the Brave Net World, #2 – the DSS case of Raphael Golb
    Steven Avery – Jan 29., 2013

    Steven Avery

  15. Hi,

    It looks like the NYS people are taking another review of certain critical aspects, which we did not know if they would do. Do I have that right?


Trackbacks & Pingbacks

  1. NY Criminalizes Satirical Impersonation | Political Film Blog

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s