Of Dead Sea Scrolls and Criminal Impersonation
Golb v. Attorney General, No. 16-0452-pr (Jacobs, Leval, Raggi), arises out of unusual facts—forged emails by a proponent of one side of an academic dispute—and reaches an unusual result. On habeas review, the Second Circuit found that it only owed partial AEDPA deference, and overturned an number of convictions after finding a New York statute unconstitutionally overbroad. In this case, an advocate of one side of the unresolved academic debate about the authorship of the Dead Sea Scrolls went too far and engaged in illegal acts that brought about his own criminal conviction. On its face, the decision applies important aspects of New York and federal constitutional law. However, in a larger sense, the law most relevant to the decision may be Sayre’s Third Law of Politics, which provides that academic politics are the most vicious form of politics because the stakes are so low.
Judge Jacobs explains the stakes at the start of his opinion: Who wrote the Dead Sea Scrolls, the ancient documents discovered in the 1940s and 1950s in caves near Jerusalem? These sacred documents have become famous since their discovery; among them are some of the oldest surviving manuscripts of portions of the Hebrew Bible. While most academics believe that they were written by a Jewish sect known as the Essenes, who lived near Jerusalem, others, including Norman Golb, have asserted that there were many disparate authors of the scrolls. As presented by the Circuit, the archeological question underlying the appeal remains unresolved.
The habeas petitioner in this appeal, Raphael Golb, was Norman Golb’s son, and he supported his father’s theory. In addition to more conventional forms of advocacy, Raphael Golb created fake gmail addresses for well-known academics who supported the Essene Theory and used them to send emails suggesting that Golb’s father was right or that his father’s critics were plagiarizers. For example, using an email address [email protected], Golb sent emails to NYU graduate students, the NYU dean and provost, and the NYU student newspaper pretending to be the scholar Lawrence Schiffman “admitting” that he had used other’s work without attribution.
Golb was convicted by a New York state jury of fourteen counts of criminal impersonation in the second degree and ten counts of criminal forgery in the third degree. He appealed all the way to the New York Court of Appeals, which threw out several of the impersonation charges and held that the statute had to be limited to impersonations of an assumed character with the intent to cause pecuniary or reputational injury, not mere annoyance (some press coverage is here). Following his win, Golb moved for reargument, saying that he was entitled to a new trial on all of the criminal impersonation charges under United States v. Shuttlesworth, 382 U.S. 87 (1965). Shuttlesworth held when a state’s highest court narrows an unconstitutionally overbroad statute, the defendant is entitled to a new trial using the new, narrowed interpretation. But the Court of Appeals denied the motion for reargument, and the lower state courts refused to consider a retrial on procedural grounds.
Golb’s Shuttlesworth claim presented the rare instance where a federal court considering a habeas challenge didn’t owe “AEDPA deference” to the state courts. That’s because Golb’s Shuttlesworth claim didn’t come into existence until after the Court of Appeals narrowed the criminal impersonation statute, but after that point no state court ruled on the merits of whether Golb was entitled to a retrial. Looking to the merits of the Shuttlesworth claim, the Second Circuit found that some of the fake emails were unmistakably sent with the intent to cause reputational harm, obviating the need for retrial. On another handful of emails, however, the Court concluded that Golb’s intent was “obscure” and the communications were “so mild and puerile that [they] might have been intended to embarrass” rather than seriously injure. For example, one email said that “Bart,” referring to Professor Bart Ehrman, “has gone and put his foot in his mouth again.” Another impersonated a different scholar, who supposedly sent an email referring to Golb’s father as “filth.” Because the jury might have convicted Golb for causing mere annoyance, contrary to the Court of Appeals’ interpretation of the statute, habeas relief was granted.
Golb’s facial challenge to the criminal impersonation statute fared less well. Here, the New York Court of Appeals did reach the merits of the issue, so the Second Circuit owed deference to its ruling. Golb claimed the impersonation statute unconstitutionally criminalized parody, but Judge Jacobs found there was no basis to think faked emails are meant to be funny: “While it is true that a parody enjoys First Amendment protection notwithstanding that not everybody will get the joke, it is also true that parody depends on somebody getting the joke.” The defendant, in Judge Jacobs’ view, “misunderstands the genre” of parody. A vagueness challenge was rejected as well.
Golb did succeed, however, in narrowing the criminal forgery statute, which criminalizes “falsely mak[ing], complet[ing] or alter[ing] a written instrument” when done “with intent to defraud, deceive or injure another.” The Second Circuit held that, in order to save the statute from overbreadth, the term deceive must be interpreted to mean cheat or defraud, so that the statute always requires an intent to injure. Otherwise, “[p]seudonymous product reviews would be criminalized, as would the use of false names by corporate or governmental whistleblowers to avoid detection and retaliation. Even the use of a pen-name is sometimes a benign deception.” Turning to Golb’s criminal forgery convictions, the Court held that five were based on conduct so clearly intended to cause harm that the convictions could stand. Habeas relief was granted on the remaining four, however, because the jury may have convicted on the basis of deception alone.
This decision is worth a read for those interested in a host of different subjects: the AEDPA, the constitutional limits of the New York forgery statute, and the controversy over the authorship of the Dead Sea Scrolls. From a legal perspective, the opinion of the Court may be most cited for its narrowing of the New York criminal forgery statute. As the Court noted, many people have used pseudonyms for legitimate purposes, and the Circuit’s decision makes clear that such use will not be punished with the criminal law. There must be more than intent to deceive; there must be intent to cheat, defraud, or deprive by deception. The absence of such intent in connection with some of the controversial emails at the heart of this appeal led to the reversal of certain counts of conviction.
 William Sayre of Columbia University was quoted in the Wall Street Journal as making this statement; some on the internet say its true attribution is uncertain. See https://quoteinvestigator.com/2013/08/18/acad-politics/ (last visited September 12, 2017).
 And Judge Jacobs would know! Not every federal judge is described in the newspaper of record as a “funny, irreverent person with a love of history.” Benjamin Weiser, “Hang Him Up? The Bad Judge and His Image,” N.Y. Times (Jan. 27, 2009) (referring to the late Judge Charles L. Brieant, Jr. of the Southern District of New York as a “funny, irreverent person with a love of history” and adding “[t]hat is a fair description of Judge Jacobs as well”).