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Your Right to Be Annoying Upheld by New York Court

If you make a living on the internet, you've no doubt been exposed to harassing, annoying, correspondents and commenters who anonymously (or otherwise) seem to take enormous enjoyment from attacking you.

But most of us have not been subjected to the kind of pathological attacks that some academics experienced at the hands of the the son of a scholar whose theories about the origins of the Dead Sea Scrolls were dismissed by the academy. The son began a campaign of internet harassment that included voluminous emails, blog postings, and even forgery and impersonating his father's critics. This led to his arrest and conviction under a controversial statute -- "aggravated harassment in the second degree" -- which is defined as communicating with someone "in a manner likely to cause annoyance or alarm" and "with intent to harass, annoy, threaten or alarm."

New York's highest court ruled that the statute is drawn too broadly to be consistent with free speech rights guaranteed under the First Amendment.

Jacob Sullum of Hit and Run blog:

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 in that case, 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 the interactions that led to the harassment charges against Raphael Golb 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 some intent 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.

Are there no limits, then, to internet harassment?  This ruling would not appear to affect communication that threatens bodily harm to a recipient or his family. But what of some crazy who who disagrees with you and floods your email box with scurrilous lies or posts comments or Facebook postings clearly designed to injure you?

You can block his email and ignore what he says about you elsewhere. The attorney who handled the case for Mr. Golb said it best:

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."

That describes a lot of internet commenters -- present company excluded, of course.