‘The Great Isaiah Scroll,’ part of the Dead Sea Scrolls found at Khirbet Qumran in the West Bank. Left: Raphael Golb, son of a Dead Sea Scroll scholar, in Manhattan Supreme Court in 2010.. (Photo: Louis Lanzano/AP. Image of scroll courtesy of the Israel Museum.)
ALBANY – The behavior of a man who assumed a false identity to discredit scholars who were in a professional dispute with the man’s father over the origins of the Dead Sea Scrolls is “absolutely ubiquitous” in the Internet age and is not criminal, the man’s lawyer told the state Court of Appeals Tuesday.
“If we want to go back and resurrect criminal libel in the Internet era we can do that,” defense attorney Ronald Kuby told the court. “But, at least since 1965, the law has been that these types of reputational harms are beyond the scope of criminal law.”
Kuby argued in People v. Golb, 72, that the Manhattan District Attorney’s Office overreached by charging Raphael Golb with two felonies and 28 misdemeanors for his activities between 2006 and 2009 in which he used aliases on the Internet to discredit scholars who disagreed with his father, Norman Golb.
Those rivals, including the former head of Jewish studies at New York University, Lawrence Schiffman, ascribed to the traditional view that the Dead Sea Scrolls were the work of a Jewish sect called the Essenes. Golb believes the scrolls, which contain perhaps the earliest recorded version of the Old Testament, were collected from libraries in Jerusalem and hidden in a cave to protect them from a Roman invasion about the year 70 A.D.
The scrolls were discovered in 1948 in what was then Jordan.
Among Raphael Golb’s activities in defense of his father’s position was disseminating emails under email@example.com in which Golb confessed, assuming Schiffman’s identity, that he plagiarized Norman Golb’s work.
“Wasn’t this a vicious thing to do, to try to ruin a man like this?” Judge Robert Smith asked Kuby.
“Telling the truth about a bad man [Schiffman] in a specific way, is that a bad thing to do?” Kuby replied. “I don’t know. I’m sort of OK with it. You’re not. That’s fine, but we’re talking about use of a criminal sanction.”
Kuby maintained that Raphael Golb’s tactics posing as others on the Internet was both protected by the First Amendment free speech guarantees and so obviously the work of a person other than Schiffman or the other scholars as to be a parody.
In any event, Kuby argued that the criminal prosecution for what he called “literary impersonation” resulting in Golb’s convictions for criminal impersonation, forgery, aggravated harassment and unauthorized use of a computer were unusually harsh, and he urged the judges to discard them.
Kuby said Golb’s behavior would cross the line into criminality only if Schiffman or other targets of his discrediting activities suffered a financial loss or other concrete damages because of them.
The lively half-hour of oral arguments featured frequent references to instances in popular culture where people assume the identities of others—Smith mentioned Tina Fey’s impersonations of former vice presidential candidate Sarah Palin on Saturday Night Live—without risking criminal prosecution.
Assistant Manhattan District Attorney Vincent Rivellese said of all Golb’s activities, sending emails under Schiffman’s name in which he “admitted” committing plagiarism was the most serious.
But Rivellese faced skeptical questions from several judges about whether Golb’s Internet postings rose to the level of aggravated harassment or the other crimes for which he was convicted.
“Is this aggravated harassment, or just annoying behavior?” Chief Judge Jonathan Lippman asked.
“It’s both, that’s for sure,” Rivellese responded.
“Isn’t that a little overbroad?” Lippman asked.
“No,” Rivellese said.
Smith chimed in, asking whether he could face prosecution for aggravated harassment if he asked a question that he knew was going to be annoying.
Rivellese said he could, if the question was in writing.
“Really? Really?” Smith said incredulously. “If I email somebody an annoying question, I get a year?”
Golb was convicted of two felonies and 30 misdemeanors and sentenced to six months in jail and five years’ probation.
Golb, a literary scholar, has a degree from New York University School of Law.
Prosecutors said his criminal case stemmed from a scholarly dispute between his father Norman, a professor at the University of Chicago, and his rivals over the Dead Sea Scrolls.
Golb acknowledged turning to more aggressive tactics on the Internet beginning in 2006, when discussions about the Dead Sea Scrolls coinciding with a tour of the scrolls to San Diego, New York and other cities in North America failed to note his father’s competing research on their origins.
In his brief, Kuby contended that the trial judge, Supreme Court Justice Carol Berkman, failed to restrict the definitions of “injury” and “harm” as applied to the victims. That caused Golb to be convicted of criminality when he did nothing more than bruise the feelings of rival scholars while expressing opinions that were protected under the First Amendment, Kuby argued.
An Appellate Division, First Department, panel unanimously affirmed all but one of Golb’s convictions. It threw out one count of second-degree identity theft, a felony, finding that he did not intend to commit a fraud for personal benefit of at least $1,000, as the charge requires (NYLJ, Jan. 31, 2013).