raphael golb – Techdirt (original) (raw)

NY Prosecutor: Annoying Someone Is A Criminal Act, Especially If It's In Writing

from the because-'on-a-computer' dept

Some very interesting claims arose from oral arguments related to a case that has been kicked around the court system for a couple of years now. The case is People v. Golb, one that arose out of an extended disagreement between two college professors (Norman Golb of the University of Chicago and Lawrence Schiffman of NYU) over the origins of the Dead Sea Scrolls.

One thing led to another… which then (inexplicably) led to Norman Golb’s son, Raphael, creating more than 50 online aliases to create a ground swell of support for his father’s views… which then (even more inexplicably) led to Raphael Golb impersonating Lawrence Schiffman (via email) in order to portray Schiffman as a plagiarist — using Schiffman’s own email address. It is this Golb the People have a problem with.

(Even more inexplicably, this somehow also led to a lawyer claiming to represent Schiffman sending legal threats to bloggers who had covered the case, asserting that their “criminal postings” needed to be taken down immediately. Clifford A Rieders Esq. could not have picked a worst trio of bloggers to send baseless legal threats to: Scott Greenfield of Simple Justice, Eugene Volokh of the Volokh Conspiracy and Ken White of Popehat. Lessons were indubitably learned.)

In January of 2013, the court found that the younger Golb’s First Amendment rights had not been violated during his prosecution for impersonating Schiffman in order to discredit him.

The pre-Washington Post version of Volokh Conspiracy covered the relevant parts of the decision.

Defendant’s convictions arise out of his use of emails to impersonate actual persons. Nothing in this prosecution, or in the court’s jury charge, violated defendant’s First Amendment or other constitutional rights… Among other things, defendant sent emails in which one of his father’s rivals purportedly admitted to acts of plagiarism…

Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails. The First Amendment protects the right to criticize another person, but it does not permit anyone to give an intentionally false impression that the source of the message is that other person (see SMJ Group, Inc. v 417 Lafayette Restaurant LLC, 439 F Supp 2d 281 (SD NY 2006]).

This decision is now being appealed, and the Volokh Conspiracy (Beltway Edition) is again on the scene, pointing out how the prosecutor is pushing for a very broad reading of relevant statutes — something that will be of concern to anyone who might say something offensive via the internet.

I’ve blogged before about the danger of criminal harassment laws, when they are extended beyond offensive speech to one particular unwilling person — the traditional telephone harassment example — and apply instead to speech about a person. (See posts here and here, as well as this law review article, which starts by concrete examples of how such laws have been used.) And the prosecutor’s statement in this argument helps illustrate just how broadly prosecutors can read such laws.

Eugene Volokh quotes part of the oral arguments presented April 2nd. Here’s the lead-up and the relevant quote, both of which highlight the prosecutor’s (Vincent Rivellese) ridiculous stance, as well as the judges’ incredulity at what’s being claimed.

CHIEF JUDGE LIPPMAN: Is this aggravated harassment or is this just annoying behavior? MR. RIVELLESE: Well, it’s both, that’s for sure. What’s the – – – CHIEF JUDGE LIPPMAN: Well, but is it technically a crime? Can it be in this kind of – – – MR. RIVELLESE: Yes. CHIEF JUDGE LIPPMAN: Isn’t that a little bit overbroad? MR. RIVELLESE: No. CHIEF JUDGE LIPPMAN: No? Go ahead. Why not? MR. RIVELLESE: This – – – this is the closest argument obviously in the case, but the aggravated harassment involves an intent to harass, annoy or alarm, and it’s – – – it’s got an intent that’s required. It’s also got the likelihood of harassing or alarming the recipients or the victims. It’s also got – – – JUDGE SMITH: If I – – – if I ask you a question that I expect to be an annoying question, and is likely to be an annoying question, am I committing a misdemeanor by asking the question? MR. RIVELLESE: No, because there’s no writing. The aggravated harassment – – – JUDGE SMITH: Oh, but – – – oh, but if I submitted the question in writing, it would be a misdemeanor? MR. RIVELLESE: Well, if – – – if you conveyed to somebody. So if you e-mailed somebody or you wrote a letter – – – JUDGE SMITH: Really? Really?

The delineation is obviously foggy if saying something is no crime, but writing it down is. Further on:

JUDGE SMITH: If I e-mail someone an annoying question, I get a year? MR. RIVELLESE: Well, it has to be likely to annoy, harass, or alarm – – – CHIEF JUDGE LIPPMAN: So if Judge Smith put what he’s asking you now in writing, this is a crime? MR. RIVELLESE: I’m not annoyed. I’m not annoyed. So I’m fine. CHIEF JUDGE LIPPMAN: Oh, okay, you’re not annoyed. Okay. It might have been mis – – – JUDGE SMITH: Give me – – – give me time. MR. RIVELLESE: The proper discussion – – – JUDGE ABDUS-SALAAM: Counsel, is it that subjective that the person who receives the question has to feel that it’s annoying? MR. RIVELLESE: Well, no, it is – – – it’s reasonableness. JUDGE ABDUS-SALAAM: It has to have an objective right.

So it would appear. Objective but not subjective, but in this case, with the impersonation of another person, Rivellese seems to feel that it’s actually more a subjective problem, especially when it’s not even the victim who’s being directly targeted. And the “intent to annoy and alarm” exception to the First Amendment should be enforced even if the speech is about a person rather than directed at a person.

JUDGE PIGOTT: But as a third – – – you’re saying there can be a third-party aggravated harassment. MR. RIVELLESE: Yes, if still – – – there’s still an intended victim. JUDGE PIGOTT: So if – – – well, that’s I – – – you get – – – you get three college kids – – – you get some college kid who write – – – who e-mails the girlfriend of his roommate saying, you know, he really is a useless person. Is that aggravated harassment with respect to the victim, boyfriend/roommate? MR. RIVELLESE: Yes, because it’s got – – – JUDGE PIGOTT: Really? MR. RIVELLESE: It meets all the elements. It does not require that the person that you send the communication to is the same person that you intend to harass, annoy and alarm.

This is what alarms Volokh. The narrow targeting of the First Amendment exceptions are being broadly read by prosecutors. This is the sort of expansion — one that pushes behavior normally subject only to civil actions into criminal territory — that invariably makes its way into newly-crafted laws targeting online behavior.

Here’s what Volokh originally said about the decision that’s now being appealed.

Intentionally trying to make others believe that someone did something (write an e-mail) that he did not inflicts specific harm on that other person, whether by harming his reputation or at least by making others think that he believes something that he doesn’t (which will often be civilly actionable under the false light tort). To be sure, that usually leads to civil liability, but nothing in the Court’s decision suggests that criminal liability in such cases is impermissible, especially when the law is limited to relatively clearly identifiable falsehoods, such as falsely claiming to be someone you are not.

That’s much more limited than what the prosecutor’s arguing. His argument removes the limitations (falsehoods and false impersonation) and suggests that nearly any attempt to harass or annoy someone is a criminal offense. This is on top of his claim that there’s a clear delineation between oral and written speech, with the latter being the more “criminal” of the two. It’s this sort of broad reading that makes nearly every new cyberbullying/harassment law a handy new tool to criminalize a vast swath of online behavior.

Filed Under: annoying, first amendment, free speech, harassment, lawrence schiffman, normal golb, raphael golb

from the often-more-entertaining-than-porn,-the-other-thing-the-net-does-well dept

It has long been stated that the Internet is for porn. And while that’s never really going to change, it also appears that the Internet has another purpose: baseless legal threats. Something tends to get lost in the ether(net), stripping away many people’s ability to think clearly when confronted with criticism. This isn’t necessarily a new thing, but we do seem to be “enjoying” a spike in confrontational (but baseless) legal threats.

From Teri Buhl’s unpublishable tweets to On Press Inc.’s libel/liable difficulties to Ken Matherne’s unintentionally hilarious grab bag of misspelled legal terms to Prenda Law’s desperate Hail Mary defamation suits, the internet is practically swimming in misguided legal theories and badly written threats.

Here’s another story to add to the corpus asshattus of baseless legal threats. The very brief back story: A little over two years ago, The Volokh Conspiracy and Scott Greenfield’s Simple Justice blog covered the story of a certain Norman Golb, a University of Chicago professor who found himself tangling with Lawrence Schiffman, the head of Judaic Studies at NYU, over the origins of the Dead Sea scrolls.

These two academics went head-to-head, attacking each other at various internet locations. Norman Golb’s son, Raphael, also stepped into the fray, creating more than 50 aliases in an effort to emulate a groundswell of support for his father’s viewpoint. Then he went one step further, impersonating Schiffman and sending emails to NYU students and staff suggesting he (as Schiffman) had committed plagiarism in one of his articles.

The end result: Raphael Golb was handed an indictment for identity theft, impersonation and harassment. All of this over an academic pissing match.

Flash-forward to just a few days ago, and both Eugene Volokh and Scott Greenfield receive identical emails pertaining to this story, both containing legal threats.

Law Offices of Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt 161 West Third Street PO Box 215 Williamsport, PA 17701 … E-MAIL TO: Eugene Volovh [volokh@law.ucla.edu] FROM: Clifford A. Rieders, Esquire DATE: March 13, 2013 RE: Lawrence Schiffman CC: Professor Lawrence Schiffman

Please be advised that the undersigned represents Professor Lawrence Schiffman, previously Professor of Hebrew and Judaic Studies, New York University, Skirball Department of Hebrew and Judaic Studies, now Vice Provost of Yeshiva University.

Dr. Schiffman’s name was the subject of illegal and criminal misconduct by Raphael Golb. Your website has been provided to me as one of the locations where the criminal postings occurred.

Please confirm that within five (5) work days of the date of this email the following will occur:

1. Complete removal of the blog material; 2. Removal of index entries on search engines; 3. Cancellation of fraudulent email accounts; 4. Removal of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him.

We will need your certification as to all efforts made to expunge the material.

I enclose as Exhibit 1 news release by the office of Manhattan District Attorney Robert M. Morgenthau announcing the arrest of the 49-year-old Raphael Golb for creating multiple aliases to engage in the campaign of impersonation and harassment relating to the Dead Sea Scrolls and scholars of opposing viewpoints. Mr. Golb was arrested on charges of identity theft, criminal impersonation, and aggravated harassment.

I am also enclosing as Exhibit 2 letter from Director, Witness Aid Services Unit, District Attorney of the County of New York, providing a temporary order of protection which the court issued in the aforementioned criminal case.

I am advised that Mr. Golb has been convicted and appeals denied. Unfortunately, there continue to be current blogs containing Golb’s fabricated story, as though Dr. Schiffman acknowledged or admitted some wrongdoing. I am enclosing not only a variety of sampling but also the platform, address and the blog as well as URLs.

Please contact me as soon as possible at …

The offending post at Volokh contained nothing more than a quote of the People v. Golb opinion and a First Amendment analysis of the decision. (Interestingly, considering the threats, Volokh agreed with the decision that found in favor of Schiffman.) Greenfield’s post was a bit more in depth and was written as the case was headed to court.

Volokh’s reaction was to break one of his own rules:

The e-mail from Mr. Rieders of course offers no explanation of how this is a “criminal posting[],” because of course it isn’t. Fortunately, I can tell that there is absolutely zero basis for the demand letter; other recipients of the e-mail might not be so lucky.

I generally do not publish letters sent to me, but unfounded demands such as this are an exception. This is especially so because demonstrating the unsoundness of the lawyer’s argument requires showing the entirety of the letter — both the particular language that the letter included (“criminal postings,” the demand for “[c]omplete removal of the blog material,” the demand for “[r]emoval of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him,” and so on) and what the letter didn’t include (any specific explanation for why the material would indeed be legally actionable).

In any event, I’m happy to certify that no efforts whatsoever will be made to expunge the material in that blog post; my response to Mr. Rieders and Prof. Schiffman will be a link to this post.

Greenfield’s response is nearly identical. (Nearly.)

Eugene is much nicer than I am. Had he not calmly and succinctly explained the email’s massive failing, I would have been constrained to respond, bite me. I am happy to say that because of Eugene’s parsing of the unfounded email, I can maintain my dignity, merely refer to Eugene’s response, and add, “what he said.”

So, what he said. Asshole.

At this point, Ken White at Popehat (never one to suffer “feckless legal bullies”) stepped in and attempted to divine who was behind these legal threats and ascertain their rationale for shooting their own client in the foot.

Dear Mr. Rieders,

I am an attorney in Los Angeles, a member of the First Amendment Lawyers Association, and write at a blog called www.popehat.com regarding various legal matters, particularly including free speech and legal threats based on online comment.

Today I noticed two posts — one by Eugene Volokh, and one by Scott Greenfield — discussing legal threats you have sent.

Are you willing to answer questions about those threats? I am planning on writing a post about them, and would like to solicit your position first.

My questions are these:

1. Did you actually draft this threatening email yourself, or was it some underling?

2. Did you actually select the recipients of the letter, or were the targets selected by some automation, or by a non-lawyer?

3. I ask #2 because I am attempting to grasp, in looking at Professor Volokh’s post about the Golb matter (http://www.volokh.com/2013/01/29/no-first-amendment-violation-in-e-mail-impersonation-case/), how Professor Volokh’s analysis of a published appellate case could possibly be actionable in any way, let alone “criminal.”

4. What is your theory on how a discussion of the allegations against Mr. Golb — including allegations that he wronged your client, Mr. Schiffman — could be actionable or “criminal”? Is it your position that your theory has any support in any legal authority accessible to the general public?

5. I recognize that you would not be so unprofessional as to disclose your confidential communication with a particular client. Therefore, let me frame my next series of questions as follows: Are you familiar with the Streisand Effect? Is it your practice to advise clients, before sending out extravagant legal threats demanding the removal of information about them from the internet, about the risks posed by the Streisand Effect — the risk that your threats will result in the challenged content being seen by several orders of magnitude more people? Is it your practice to advise clients that there may be particular risks in threatening bloggers with popular blogs known for being vigorous supporters of the First Amendment?

6. Do you believe that your representation of Mr. Schiffman in the course of making these threats falls within the standard of care for attorneys in your community? Any response you would like to offer would be appreciated, and will be incorporated into my post commenting on your threats.

Thanks, Ken White

White received this in response:

I have no idea what you are talking about, who you are or who you represent. Please therefor, [sic] do not respond again [sic]

White and a couple of his readers went digging for who was actually behind these threats and found, unsurprisingly, that it was someone at the Rieders Travis law firm, as all the emails were sent from the same originating IP address. It seems rather unlikely that the same person who sent the original threatening emails would have “no idea” what Ken was talking about. Unless, of course, someone was generating fake email addresses and impersonating members of the Rieder Travis legal team, but that would just be insanely ironic considering the original subject matter.

The implications of these baseless legal threats for the threatening party are potentially huge. Both Ken White and Scott Greenfield mention the Streisand Effect. Apparently, Cliff Rieders (the person purportedly sending the ill-advised emails) is unfamiliar with the term. If he was, perhaps he wouldn’t have bothered irritating this trio of bloggers, because what he’s unleashing is going to do quite a bit of harm to his client’s interests.

White and Greenfield both have updated their posts to include the news that the Supreme Court in California has granted review of Golb’s conviction. The order granting leave to appeal is dated March 11th. The threatening emails arrived on March 13th. This order directly contradicts Cliff Rieders’ statement in the last paragraph of his email.

I am advised that Mr. Golb has been convicted and appeals denied.

It certainly looks as though someone’s trying to whitewash the web in advance of an appeals hearing. White theorizes that Rieders is blasting out identical emails to anyone who turns up in a rudimentary Google search for Schiffman and Golb. If this was a targeted takedown effort, Rieders likely would have avoided these blogs, choosing to go after more complicit writers. Unfortunately for Rieders and his client, he threatened the wrong people and his clumsy efforts are being debated in the court of public opinion. On top of that, the posts he wanted removed will remain live. Now, he and his client will be linked to unflattering stories about baseless legal threats, leading to even more bloggers pushing back against the takedown attempts.

It’s the Streisand Effect and the only way to win is not to play. Many participants aren’t even aware they’re playing until it’s too late. A full withdrawal of the threats, along with an apology, is about the only way to limit the damage. But, if the past is any indication, this will probably get a lot worse for Rieders (and more entertaining for the rest of us) before it gets any better.

Filed Under: clifford rieders, eugene volokh, free speech, lawrence schiffman, legal threats, norman golb, raphael golb, scott greenfield