ALBANY – The state Court of Appeals Tuesday ruled that New York’s second-degree aggravated harassment statute, which criminalizes communications likely to “cause annoyance or alarm” to another person, is unconstitutional.
The ruling relieves Raphael Golb of three aggravated harassment convictions connected to a campaign he waged on the Internet—often assuming pseudonyms or by assuming the names of scholars—to defend his father Norman Golb’s unconventional theory of the origins of the Dead Sea Scrolls.
All told, the court vacated 10 of the 29 remaining charges against Golb, including two felony counts for second-degree identity theft, as well as counts of unauthorized use of a computer and second-degree criminal impersonation.
The dismissal of the identity theft counts means that Golb will get back the law license he lost upon his felony conviction, said his attorney, Ronald Kuby.
The court upheld Golb’s convictions for nine counts of second-degree criminal impersonation and 10 counts of forgery.
The 6-1 ruling came in People v. Golb, 72. The dissenter, Chief Judge Jonathan Lippman (See Profile), said that while it was “difficult” to find Golb’s conduct “admirable,” he would have dismissed all of the charges in the indictment against him.
Aggravated harassment in the second degree, Penal Law §240.30(1)(a), makes it a misdemeanor to “harass, annoy, threaten or alarm” another person in writing or by telephone in a manner “likely to cause annoyance or alarm.”
Writing for the majority, Judge Sheila Abdus-Salaam (See Profile) said the law is “not clear” about what the words “likely to cause annoyance or alarm” mean and what actions the statute proscribes.
“We agree with defendant that this statute is unconstitutionally vague and overbroad,” she wrote.
She also noted that rulings by two federal judges have similarly found the state’s second-degree aggravated harassment statute unconstitutionally vague: Southern District Judge Shira Scheindlin in Vives v. City of New York, 305 F.Supp.2d 289 (2003), and Southern District Judge Charles Brieant Jr. in Schlager v. Phillips, 985 F.Supp.419 (1987).
Golb was charged with harassing three academics: Robert Cargill of UCLA; Stephen Goranson at Duke University and Lawrence Schiffman at New York University.
A traveling exhibit of the Dead Sea Scrolls visited the campuses of the three scholars between 2006 and 2008. The exhibit recounted the prevailing theory, known as the Qumran-Sectarian theory, that the scrolls were written by a Jewish sect living in or near Qumran, an archeological site on the West Bank now controlled by Israel.
Golb sought to have the exhibit at least acknowledge the “Jerusalem libraries theory,” an alternative theory espoused by his father, which holds that the scrolls were the writings of various groups and were collected for safekeeping from libraries as the Romans were about to seige Jerusalem in 70 C.E.
According to authorities, Rafael Golb used pseudonyms to repeatedly contact Cargill, Goranson and Schiffman and challenge the materials about the origins of the scrolls that accompanied the exhibit.
Authorities say Golb also tried to discredit the scholars. For instance, he sent out emails under “firstname.lastname@example.org” in which Golb assumed Schiffman’s identity and confessed in the scholar’s name to plagiarizing Norman Golb’s work.
The court upheld the criminal impersonation counts despite the defense’s argument that no monetary loss or damage was suffered by the targets of Golb’s Internet attacks.
The criminal impersonation statute, Penal Law §190.25, makes it a misdemeanor to impersonate another person “with intent to obtain a benefit or to injure or defraud another.” Cases have traditionally involved monetary fraud, but the court said an injury to one’s reputation is also within the “injuries” contemplated by the statute.
“Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property, and we believe the Legislature intended that the scope of the statute be broad enough to capture acts intended to cause injury to reputation,” Abdus-Salaam wrote.
The court also invalidated the unauthorized computer use charge, saying it was designed to punish a user such as a hacker who does not have the owner’s permission.
Golb, however, was authorized to use computers at New York University from which he sent the objectionable emails, the court said in dismissing that charge.
The court sent the case back to Manhattan Supreme Court for resentencing. Former Justice Carol Berkman, who is now retired, sentenced Golb to six months in jail and five years’ probation. An Appellate Division, First Department panel in People v. Golb, 102 AD3d 601 (2013), threw out one of 30 charges against Golb and confirmed his sentence.
Kuby said he expects Golb to receive no jail time and a reduced period of probation.
Lippman said he agreed with his colleagues in declaring the second-degree harassment statute unconstitutional and in dismissing 10 charges. But he said he would have thrown out the entire indictment, finding the criminal impersonation and forgery charges are too broad to be applied in the context of Golb’s Internet activities.
“Treating pseudonymous emails as forgeries when they are made with some intent to ‘injure’ in some undefined way is no different than penalizing impersonation in Internet communication for the same amorphous purpose,” Lippman wrote. “Both treatments give prosecutors power they should not have to determine what speech should and should not be penalized.”
Kuby said striking down the second-degree aggravated harassment statute means “in New York, it is now perfectly legal to make phone calls to public officials that they find so annoying.”
Kuby said his mentor, civil rights lawyer William Kunstler, used to have a saying that, “This is New York. It’s not illegal to be annoying in New York.”
“Well, I’m happy that Bill Kunstler’s vision has now come through in the law,” Kuby said.
Assistant District Attorney Vincent Rivellese argued for the prosecution (NYLJ, March 26).
Manhattan District Attorney Cyrus Vance Jr. said in a statement, “The aggravated harassment statute is one of the most important tools we have to protect victims of, among other serious crimes, stalking and domestic violence.”
He added that last year, “there were approximately 900 people charged in Manhattan with this crime; many of these cases are pending. We will now work with advocates, our partners in law enforcement and state lawmakers to address the potential implications of this ruling.”