Tragic end of a sock puppet
A lawyer was sentenced Thursday to six months in jail after being convicted of an ultramodern crime that was all about antiquity: using online aliases to harass people in an academic debate about the Dead Sea Scrolls.
Oh gosh, who would use online aliases to harass people in an academic debate? I never heard of such a thing.
Prosecutors said Golb crossed the line between discourse and crime by using fake e-mail accounts and writing blog posts under assumed names to discredit detractors of his father, a scholar. Golb said the writings amounted to pointed parody and academic whistle-blowing that he felt were protected by free-speech rights.
Oh yes? There’s a free speech right to use assumed names to discredit people?
Well, the jury didn’t think so, at any rate.
Schiffman [a scholar at NYU] went to authorities after some of his students and colleagues received e-mails from an address that used his name. The e-mails appeared to have him admitting that he plagiarized Norman Golb’s work and asking the recipients to keep quiet about it. Schiffman denies copying the historian’s work.
Raphael Golb, a literature scholar and real estate lawyer with a Harvard Ph.D. and an NYU law degree, acknowledged during his trial that he wrote the messages. But he said he never intended for anyone to believe Schiffman actually sent them and portrayed them as “satire, irony, parody.”
Riiiight.
I shouldn’t laugh. But I am anyway.
Ward Churchill was convicted of the same thing. Result — he got the axe from U Colorado in 2007. Sock puppetry on the internet is serious business in academia.
That having been said, the rest of the world evidently doesn’t care. When Churchill took the case to court, he was able to convince the jury that he was wrongfully dismissed.
If I’m reading this correctly, it wasn’t “sock-puppetry” per se (creating multiple aliases) that got him in trouble. It was outright identity theft. Apparently, Golb used the names of real, living, breathing scholars with a stake in this topic when he sent emails and posted comments.
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Well, in general terms, yeah. It’s pretty much the People vs. Larry Flynt case. Flynt and Hustler used an assumed name (Jerry Falwell) to mercilessly mock Falwell.
Falwell sued Flynt for libel and intentional infliction of emotional distress… and lost.In the case you’re writing about, Golb apparently is claiming that he didn’t intend for anyone to believe that Schiffman actually wrote the e-mails. That sounds pretty implausible, and clearly the jury didn’t buy it—but it’s pretty much the same defense Flynt succeeded with. It sounds like Golb lost on the facts, not the law.
I might be mistaken here, but I’m guessing that the fact that Golb is a lawyer might be part of what is involved here. As an attorney, he ought to have known better that to impersonate someone.
The parody argument does not sound very persuasive to me. If he had used a name such as “Scoffman” instead of “Schiffman” it might have been easier to argue that it was parody.
On sock puppetry, Kierkegaard comes to mind.Totally on a different level than this lawyer.
Uh, the Falwell parody was published in Hustler and was obviously a parody (you can find the ad on Google Images pretty easily). Nobody with half a brain could believe the ad was a realistic interview of Falwell or that Campari would have paid to publish it. Another small clue might have been the “ad parody—not to be taken seriously” printed at the bottom of the page and the “Fiction; Ad and Personality Parody” listing in the table of contents. Falwell sued
FalwellFlynt and won on one claim (intentional infliction of emotional distress) and lost on the other (libel). Then Flynt appealed and the Supreme Court unanimously overturned the initial verdict on the grounds that Falwell, being a public figure, could not expect protection under the First Amendment . Here is the court’s conclusion:“Here it is clear that respondent Falwell is a ‘public figure’ for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not ‘reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.’ App. to Pet. for Cert. C1. The Court of Appeals interpreted the jury’s finding to be that the ad parody ‘was not reasonably believable,’ and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by ‘outrageous’ conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly Reversed.”
On the other hand, here we have a person attacking another who is not a public figure, making false accusations that are not clearly parodic, writing plausibly as the person, using the victim’s email address and sending it out to the victim’s students and colleagues (and possibly others). There is almost nothing in common with the Falwell-Flynt case.
In the world of American commercial law, if a businessperson or a company had done what Raphael Golb done — published a message or advertisement that purported to be from a competitor or other businessperson — that would have been a strong basis for a civil lawsuit for a sort of trademark infringement called “passing off”; essentially, it’s false attribution of the origin of a product or message, where the objective is to confuse the public, the recipients of that message or the prospective purchasers of that product.
But because Schiffman and Golb are individuals and deal in and with ideas, not commercial products or advertising, the “false attribution” that’s going on here is more appropriately labeled fraud or identity theft . . . identity theft as a means of commiting a libel. In most jurisdictions where I’d be willing to live, libel is not a crime. What Golb did goes beyond libel, and I think the conviction and the sentence are appropriate.
Libel is not a crime? I don’t think I realized that. But maybe I did, without realizing I did – I knew people don’t go to jail for it. So what is it, a tort? Is that the right distinction? A civil tort?
I think you meant to say Falwell sued Flynt, Chris, right? I made the correction but left it visible in case I’m wrong.
Chris:
Right. That’s why Falwell lost and Golb’s prosecutors won.
Yes. Those are all fact issues, not legal issues. Golb’s assertion was that his accusations were parodic and that they were not plausibly written by Schiffman. As I said, “that sounds pretty implausible, and clearly the jury didn’t buy it.” But it’s not wrong as a matter of law.
Nonsense: both cases fit Ophelia’s description of “a free speech right to use assumed names to discredit people.” As the distinct outcomes of the two cases demonstrate, such a right does exist in some factual contexts, but not all of them. There are ways “to use assumed names to discredit people” that are protected by the First Amendment. It’s just that Golb’s argument that his case belonged in that category required a doubtful reading of his case’s facts. And therefore he lost where Flynt won.
My assertion was that “[i]t sounds like Golb lost on the facts, not the law.” Do you see any reason to conclude otherwise?
Ophelia:
Yes.
Actually, there is such a thing as criminal libel in some jurisdictions, but generally speaking libel and other forms of defamation are torts.
Thanks Rieux. I stand better informed.
On the other question – I think I meant by “to use assumed names to discredit people” – to use assumed names literally, not figuratively as in parody. In fact in parody the expression would be “adopt assumed names,” or something like that – something that points to the non-deceptive intent.
Under U.S. law, libel essentially is oral or written speech that (1) is uttered with a reckless or intentional mindset, (2) contains false information about its subject, and (3) either actually damages the reputation of the subject or falls into any of several narrow categories that cause damage to reputation to be presumed. Under N.Y. Times v. Sullivan (376 U.S. 254) and its progeny, slightly different standards have evolved in libel cases where the victim / plaintiff is a public figure or public official (The plaintiff must prove actual malice or intent to harm by the communication, or at least a disregard of the truth or falsity of the communication that is reckless, not merely negligent).
In the U.S. these days, libel is a civil tort, not a crime, but I’ve read that decades ago or in the 19th century, there were a few state and local laws that allowed criminal prosecutions for libel. Those days are long gone here. But not too long ago in Turkey (and maybe even now), it was a criminal offense to make insulting references to Turkey’s head of state. That’s pretty close to making libel a crime.
Well Turkey has a crime called “insulting Turkishness” – it makes putative libel of an abstract nationalistic quality a crime.
James:
Uh, did you notice the reference to (American) criminal libel laws I posted all of thirty minutes before your comment? There are in fact several states with criminal libel laws, right now. Enforcement is rare, but they do exist. They’re not “long gone”; the reference to the SPLC site I posted shows one being enforced all of four years ago.
Yikes. That’s an interesting case.
The Student Press Law Center says an appeals court “should find that all criminal libel statutes are unconstitutional because they cannot withstand First Amendment scrutiny.” So it’s claiming that the First Amendment protects a right to impersonate a teacher in such a way that he is suspended from his job under suspicion of sending “suggestive and threatening” messages to students.
I don’t get it. For one thing, that seems like fraud as well as libel. It seems a whole step more than saying “X is ugly and stupid and smelly.”
Ophelia,
Thanks for the correction.
Rieux,
We are obviously in agreement and I did not mean to make you feel that I was equating your views with Golb’s. I am sorry that my comment read that way.
I was trying to list the massive discrepancies between the two cases — both were about the right to assume someone’s name to insult them, sure, but beyond that the differences were enormous. Schiffman is not a public figure; Falwell was. Golb’s accusations were far more dangerous to Schiffman’s career (plagiarism in academia = end of career); the accusations against Falwell were obscene but the chances of anyone believing them were extremely remote. Golb tried to make the emails look like they came from Schiffman (spending “thousands of hours” on it); the fake Falwell ad was labelled a parody on the page and in the contents. And I agree that the points above were all matters of fact rather than points of legal reasoning, but that only makes Golb’s defence even more sad, yes?
Ophelia,
It does seem odd to me that the SPLC can claim that *all* criminal libel statutes are negated by the First Amendment. It seems to me that this logic would also decriminalise conspiracy laws. Perhaps a US lawyer can explain it.
I suppose, sure. But I was responding to Ophelia’s remark in the OP: “There’s a free speech right to use assumed names to discredit people?” That category includes both Flynt’s case and Golb’s.
Certainly Golb’s case is sad; on the stated facts, it certainly appears that he’s full of shit. But at least his legal theory could have worked… on the facts that he alleged and apparently couldn’t prove.
Legal arguments certainly do come dumber than Golb’s. One notable silly case involved two fringe candidates who ran for statewide office and came in dead last in the Republican and Democratic primaries, respectively. The two filed a multi-million dollar lawsuit naming as defendants every significant media outlet in the state, claiming that the defendants had violated their First, Seventh (!), Ninth (!), and Fourteenth Amendment rights by marginalizing and ignoring them throughout the primary campaign.
If I were representing Golb, I think I could make his argument with a straight face, though I’d almost certainly lose. But those guys? It’s just pointless.
Well, fraud is one of the most complicated things there is to prove. At common law, the plaintiff has to show:
a representation of an existing fact;
its materiality;
its falsity;
the speaker’s knowledge of its falsity;
the speaker’s intent that it shall be acted upon by the plaintiff;
plaintiff’s ignorance of its falsity;
plaintiff’s reliance on the truth of the representation;
plaintiff’s right to rely upon it; and
consequent damages suffered by plaintiff.
That’s a whole lot more than “D told a big fat lie, and P got hurt as a result.” I’m not sure that the case SPLC described could work as a fraud suit, at least on common-law terms.
Thanks Rieux.
So…I suppose that must mean that fraud is comparatively easy to get away with, and thus that there’s a lot of it around?
The issue is whether the statute as applied is void-for-vagueness with respect to what kind of “benefit” was obtained. See the California Senate discussion of precisely the issue:
http://info.sen.ca.gov/pub/09-10/bill/sen/sb_1401-1450/sb_1411_cfa_20100412_141750_sen_comm.html
The California Senate panel specifically refers to the New York statute, and recommends against using the word “benefit” which is in that statute. In that light, this verdict seems vulnerable on appeal.
“Void-for-vagueness” – that’s a useful phrase. I might steal it.
It was a somewhat vague case. From what I have read, identity theft is when one acquires information about another persons identity (for example: social security number, date of birth, telephone number, mother’s maiden name, etc.) and uses it with the intent to commit fraud (for instance, opening credit card in their name and using it for purchases; taking money from their bank account.) Fraud meaning it was an intentional purpose to deceive, or trick someone; to cause the victim to lose money, property, legal rights. That’s what I’ve gathered.
The email accounts Raphael opened up and used were somewhat “approximations” of other peoples names and I believe the intent of sending the mails was not to deceive or fraud, or for revenge – it was to present true information about what the supposed victims had been getting away with, and unfairness regarding the politics and monopoly in that field. After doing further research on this matter, and posts by a high-educated Scholar who is quite familiar with the case, it is very clear that the Professor who prosecuted Raphael, committed plagiarism, twisted and mis-represented information, did not credit other Scholars theories and ideas, put words in their mouths they never said nor claimed – and put this in writing (publications.) In my opinion this behavior should not be allowed of a tenured professor, nor any professor (which, by the way, he is certainly considered a “public figure” in the field of The Dead Sea Scrolls.)
Again, they were not false accusations, and Golb did not use their own email addresses, nor hack into their accounts. It was intended as a prank, after long attempts, decades, of trying to bring this matter to the attention of the public very politely and in a professional manner, and not intended to defraud.
The information Raphael presented is true and has been proven, from what I’ve read. I believe the case is “vague” because it is clear that he did not intend to commit crime, nor deceive or deprive the victims of money, etc. I believe his intent was to bring the truth to public light – plain and simple. And personally I feel the sentence was not appropriate – not worthy of jail time, let alone a trip to Rikers Island. Absurd and a bit extreme in my honest opinion (therefore should or could rather be void due to vagueness and what is stated in the above paragraphs.)
Anyone would be upset if this happened to them, of course. But being that Raphael’s father had close connections with the Scholars that prosecuted him, they could have asked him to stop first, and have this matter resolved more quietly. They wanted to have Raphael tracked down and severely punished for some reason. I’ve known people who’ve done far worse (and were not intended pranks, or to present true information and fraud that was going on) who have not received a jail sentence (and had a criminal record.)
It’s an outrage what happened to Golb. He is an upstanding citizen, and honorable. He shows remorse and empathy when he feels that he’s wronged others. I honestly believe he would never willfully attempt to break the law. He was also trying to help his father, a well known and respected Scholar, who was unfairly excluded from the so-called scholarly community of The Dead Sea Scrolls – he was driven to extreme measures to do bring this to public light. Someone finally took a risk to step up to the plate to reveal the real truth of what was going on here. That’s my thoughts on this matter.
(and it’s interesting.. the Professor who prosecuted Golb’s son plagiarized and mis-represented information from Golb’s work in his publications for decades, cwas onfronted to cease this behavior – and at the same time Norman Golb was also excluded from exhibits and public talks regarding The Scrolls; his son, Raphael, tries to expose what he was getting away with, then he was followed, and arrested. It’s not “rocket science” to figure out perhaps what went on here.. These are only my opinions.)
These are only your opinions? Yet they’re factual claims. Mere opinions about facts aren’t worth much. These are very specific accusations against a real person – and they’re only your opinions?
Based on the information I’ve read and studied, Golb’s work had been plagiarized. The Professor in question discredited other Scholars, twisted information, and did not cite sources.
My opinions: I still do not believe Raphael committed “crime.” His writings were intended as a parody. Why would he want to hurt that Professor – for what reason? I do believe he was angry that his father’s work was being excluded from the scholarly community, and not given credit. But, I do not think he had any ill will towards, nor resentment towards the tenured Professor at NYU. What I also believe is that when Raphael has something to say, it bears truth. His intentions were not to defraud — and only to “tell the real truth” of what was going on here after decades of polite and professional attempts. He was driven to extreme measures, so to speak. I also do not feel he should have been sent to Rikers Island – it’s a bit extreme.
Normally I do not post – but hopefully this clarifies things a bit.
But you presented your claims as facts, as if they were indisputable.
Chris Lawson wrote:
As a point of clarification, if someone, e.g. a university professor, has ever done a press interview, he/she becomes a public figure for purposes of such legal matters (i.e. libel). I am not sure whether or not he has, but it might be interesting to know this information.
02.01.2010 – Update on the Golb case and Dead Sea Scrolls Trial
Norman Golb’s response to the confidential letter written by Professor Lawrence Schiffman to NYU regarding the allegations of plagiarism that were never sufficiently addressed: http://oi.uchicago.edu/pdf/schiffman_response_2010nov30.pdf
The trial transcripts are now available online:
http://raphaelgolbtrialtranscripts.wordpress.com/
Some interesting commentary and analysis of the possible likely background for Lawrence Schiffman’s recent resignation from NYU:
http://www.topix.com/religion/judaism/2011/01/schiffman-named-to-yeshiva-u-post
http://www.roshyeshiva.wordpress.com:
The above link is incorrect
http://www.topix.com/forum/religion/judaism/T25R4LG25GOOFEJS1
blogs.yu.edu/news/2011/01/12/president-joel-appoints-vice-provost/
Bernie Madoff was Treasurer at Yeshiva University
http://www.jewishjournal.org/index.php/story/news_features/madoff_scandal_rocks_jewish_philanthropic_world/
Scroll down – Yeshiva University apparently tried to remove traces of the information on Google (cached.)
groups.google.com/group/soc.culture.jewish/browse_thread/thread/9a6666e5db3657b9?pli=1
The brief to Raphael Golb’s appeal.
http://www.tinyurl.com/Raphael-Golb-Appeal-Brief
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