Yesterday, in a bizarre case involving a
longstanding academic dispute over the origins of the Dead Sea
Scrolls, the New York Court of Appeals, that state’s highest court,
overturned a law that criminalizes annoying speech. As a result,
behavior that Grand Rapids, Michigan, decriminalized in
March is now legal in New York.
The case involved Raphael Golb, who in 2010
was convicted of 30 crimes in connection with an elaborate and
persistent Internet campaign aimed at vindicating the views of his
father, University of Chicago historian Norman Golb, and
discomfiting the elder Golb’s critics. The convictions, for which
Gold received a sentence of six months in jail and five years of
probation, included three counts of aggravated
harassment in the second degree, a Class A misdemeanor
punishable by up to a year in jail. As relevant here, the offense
includes communicating with someone “in a manner
likely to cause annoyance or alarm” and
“with intent to harass, annoy, threaten or alarm.”
That language, the court unanimously concluded, is too broad and
vague to be consistent with the First Amendment or the New York
Constitution’s free speech guarantee.
Quoting an
earlier case, the court said “any proscription of pure
speech must be sharply limited to words which, by their utterance
alone, inflict injury or tend naturally to evoke immediate
violence.” That’s a reference to
Chaplinsky v. New Hampshire, a 1942 case in which the U.S.
Supreme Court approved criminal penalties for “fighting words.” The
defendant, a Jehovah’s Witness who attracted a hostile crowd by
denouncing organized religion as a “racket” on the streets of
Rochester, New Hampshire, was arrested for calling a city marshal
“a goddamned racketeer” and “a damned Fascist.” The Court
never again used the “fighting words” doctrine to uphold speech
restrictions, which is just as well, given the utterly subjective
nature of a test that hinges on anticipated emotional reactions to
insulting or offensive utterances. In any case, all of Raphael
Golb’s interactions with his victims took place online, a situation
quite different from the in-person encounters the Court evidently
was imagining in Chaplinsky.
The Court of Appeals vacated Golb’s three harassment
convictions, along with several other convictions based on
allegations that did not meet the statutory definitions of those
crimes. But it left in place 10 counts of forgery in the third
degree and 10 counts of criminal
impersonation in the second degree, based on email messages in
which Golb pretended to be his father’s academic nemeses. Both of
those crimes are Class A misdemeanors.
Chief Judge Jonathan Lippman, disagreeing in part with his
six colleagues, said he would have dismissed the entire indictment
against Golb. He argues that the criminal impersonation statute is
“unconstitutionally broad” and that using the forgery statute to
punish the same actions is “similarly objectionable”:
Treating pseudonymous emails as forgeries when they are
made with someintent to “injure” in some undefined way is no
different than penalizing impersonation in internet communication
for the same amorphous purpose. Both treatments give prosecutors
power they should not have to determine what speech should and
should not be penalized.
The other judges suggest that Golb hurt his victims by damaging
their reputations. (For example, he confessed to plagiarism while
impersonating one scholar.) While “it would be difficult to
find the conduct by defendant detailed in the
majority opinion admirable,” Lippman says, that does not mean it
was criminal. “If defendant has
caused reputational injury,” he writes, “that is
redressable, if at all, as a civil tort, not as a
crime.”
Lippman makes a good point, but at least the court
recognized the threat to free speech posed by the ban on
intentionally annoying people. Manhattan District Attorney Cyrus R.
Vance Jr.
told The New York Times about 900 people were
charged with that crime in the borough last year, typically in
cases involving domestic disputes. Ronald Kuby, an attorney who was
involved in Golb’s defense at an early stage of the case, welcomed
the decision as victory for “the demented and dissident, the
crazies and the critical, the malcontents and the
maladjusted.”
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