Raphael Golb v. Eric T. Schneiderman, Attorney General of New York

Petitioner, Raphael Golb, waged a campaign of criticism bearing on the heavily publicized dispute over the Dead Sea Scrolls. In that context, Golb impersonated a public figure in a series of five short email “confessions” calling attention to alleged academic misconduct. Such acts of impersonation, shading into deadpan satire and parody, are frequently deployed in controversies on the Internet. Despite the long history of this form of discourse, Golb was prosecuted and convicted of criminal impersonation and forgery. The appellate courts upheld Golb’s convictions, finding that while it would not be a crime if Golb merely intended to “embarrass,” he actually intended to “damage a reputation.” These decisions raise two basic issues:

1. May the State of New York, consistent with the First Amendment, criminalize emails allegedly intended to damage the reputation of a public figure, despite the principle of overbreadth and this Court’s longstanding position that reputational damage is beyond the scope of the criminal law?

2. May the State of New York, consistent with the Fourteenth Amendment and the principle of vagueness, separate permissible from criminal speech on grounds of an intent to “damage reputation” rather than “embarrass”?