Column: The Annoying First Amendment Thicket of Aggravated Harassment (New York Law Journal)

New York’s criminalization of annoying and alarming speech finally came to an end three weeks ago when the New York Court of Appeals decided People v. Golb, a case that arose out of an academic debate that turned into an Internet jihad. The Golb ruling is remarkable not so much for it holding that the state’s aggravated harassment statute is unconstitutional as for how summarily it dispenses with the long-standing and widely used law. But Golb’s cursory analysis may be explained by its invocation of earlier federal litigation challenging the same statute on behalf of retired postal clerk Carlos Vives, who was arrested in 2002 for having mailed religious materials deemed to be annoying and alarming.

The voyage from Vives’ mailing to last month’s ruling highlights the complexities and frustrations of constitutional litigation. That trip featured two colorful cases, a decades-old statute that patently violated the First Amendment the day it was enacted, the repeated refusal of New York State to defend an unconstitutional statute that continued to be enforced, the decision by the Second Circuit to avoid passing on the law ten years ago, and thousands of unnecessary arrests since then, all capped by last month’s ruling from the New York Court of Appeals.

The Statute
Since 1965 New York has criminalized certain behavior, including speech, that the state labels as “aggravated harassment in the second degree.” As now codified at section 240.30 of the Penal Law, the statute opens with an intent requirement and then contains five subsections that outline behavior that becomes a class A misdemeanor if engaged in with the specified intent. The first of the five sections, when read with the intent requirement, reads as follows:

A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten, or alarm another person, he or she . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.

Thus, it long has been a crime in New York to communicate with an intent to annoy or alarm in a manner likely to cause annoyance or alarm. In what can only be described as a charitable understatement, the 2014 practice commentary accompanying the McKinney’s codification of the statute notes, “Whether subdivision one as written or applied contravenes the federal or state constitution has been in issue for decades.” That issue came to the fore with Carlos Vives but was not finally resolved until the recent Golb case.

Carlos Vives and the European Union
Carlos Vives’s religious mailings — mailings about the threat posed by the European Union that he’d been sending for over twenty years — led to his arrest in 2002 when a recipient complained to NYPD officers that she found the materials annoying and alarming. Vives subsequently came to the New York Civil Liberties Union, and I represented him in a case we filed in the Southern District of New York against New York City challenging the constitutionality of the aggravated harassment statute as it applies to annoying and alarming speech

Because the case challenged the constitutionality of a state law, the District Court notified the New York State Attorney General’s office so that it could enter the case to defend the statute. In an omen of things to come, the Attorney General’s office refused to do so, leaving the City to defend the state’s law.

At the outset of her opinion striking down the aggravated harassment statute as it applied to annoying and alarming speech, Judge Shira Scheindlin recognized the implications of the challenge to the statute:

In this Information Age, Americans are bombarded daily with unsolicited communications, by telephone, fax, email, and mail. The vast majority view these communications as, at a minimum, annoying—email boxes filled with spam, prerecorded advertisements left on telephone answering machines, mail slots jammed with credit card applications, catalogs and brochures. Some of the communications go beyond annoying, and rise to the level of alarming—emails that threaten the recipient with harm if the email is not forwarded to a certain number of people, or warn the user that the contents of a computer are not secure from hackers and viruses unless a particular product is purchased and downloaded. This opinion addresses whether, consistent with the First Amendment, the government may limit or proscribe speech that is intended to annoy or alarm.

Turning to the constitutional question, Judge Scheindlin surveyed in detail First Amendment decisions from the United States Supreme Court going back nearly a century and then readily found that Vives’ mailings were protected and the statute unconstitutional:

Vives’s communications do not fall into one of the defined categories of unprotected speech such as defamation, incitement, obscenity, or child pornography. Nor do they constitute unprotected “true threats,” because they are not serious expressions of an intent to commit an act of unlawful violence to a particular individual or group of individuals. In fact, Vives’s mailing are nothing more than communications “that the overwhelming majority of people might find distasteful or discomforting.” Abrams, 250 U.S. at 630, 40 S.Ct. 17 (1919). But the Supreme Court has made very clear that such communications are fully protected speech that may not be proscribed or punished. As such, Vives mailings are firmly protected by the First Amendment, and may not be proscribed or punished.

Judge Scheindlin also ruled that, because Supreme Court law was so clear, the arresting officers were not entitled to qualified immunity from damages.

The City appealed the qualified immunity ruling to the Second Circuit but offered only a half-hearted defense of the statute. And the Attorney General’s office again refused to defend the statute. Despite what this all clearly signaled about the statute’s constitutionality, the Court of Appeals refused to address the issue, claiming in a footnote that the challenge to the statute “was not properly presented to us” by virtue of the lack of briefing defending the law.

This evasion drew a sharp dissent from Judge Richard Cardamone, who noted that “the constitutional issue before us is not particularly difficult, and the violation is particularly egregious.” And for him the constitutional analysis, given long established Supreme Court law, was straightforward:

Speech of this sort may only be proscribed in three very limited circumstances: (1) the speech constitutes “fighting words” that “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” (2) the speech constitutes “advocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” and (3) the speech constitutes a “true threat” by which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Section 240.30(1) is not limited to these three categories.

Raphael Golb and the Dead Sea Scrolls
The Second Circuit and Attorney General’s avoidance of the constitutional challenge presented by the Vives case meant there was no controlling federal appellate precedent on the issue, essentially leaving law-enforcement agencies around the state free if they chose to continue to enforce the statute against annoying or alarming speech. That freedom did not end until three weeks ago with the decision by the New York Court of Appeals in Golb.

As I discussed in a prior column, the Golb case arose out of an academic debate over the origins of the Dead Sea Scrolls, a cache of 2,000-year-old texts and fragments discovered in caves near Qumran, in what is now the West Bank. One participant in that controversy is a University of Chicago professor whose views about the Scrolls’s origins have not been accepted by the academic community. That in turn prompted his son, Raphael Golb, a New York City resident and NYU Law School graduate, to mount an Internet campaign in which he used as many as 80 aliases – known as Internet sock puppets – to post comments supporting his father’s views and attacking academicians in the other camp.

Beyond his faux Internet debate, the younger Golb also mounted an e-mail campaign. In response to a virtual tour created by a U.C.L.A. graduate student for a museum exhibit about the Scrolls, Golb sent pseudonymous e-mails to academics indicating the student was an anti-Semite. And in an effort to tarnish an NYU professor prominent in the Dead Sea Scrolls community, Golb created a gmail account in the professor’s name and sent out e-mails to the professor’s colleagues in which the professor appeared to admit that he had plagiarized work done by Golb’s father.

The professor went to the FBI, which ultimately led to the Manhattan District Attorney’s Office prosecuting Raphael Golb for various offenses. The primary charges against him were criminal impersonation, forgery, and identity theft, but he also was charged with aggravated harassment in the second degree for sending annoying e-mails.

The New York Court of Appeals accepted the case for review and on May 13 affirmed Golb’s convictions on most of the counts. But it vacated the aggravated harassment conviction and, invoking Judge Scheinldin’s decision in Vives and Judge Cardamone’s dissent, had no trouble declaring the statute unconstitutional with respect to annoying or alarming speech.

It’s three-paragraph analysis starts with the observation that in a 1989 case – People v. Dietze – striking down a related statute, the Court had noted that “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.” From there, the analysis and the road back to Carlos Vives was straightforward:

The reasoning applied in Dietze applies equally to our analysis of Penal Law § 240.30(1)(a). The statute criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment statute at issue in Dietze, no fair reading of this statute’s unqualified terms supports or even suggests the constitutionally necessary limitations on its scope. . . . .

Three federal judges have already found this statute unconstitutional (see Vives v. the City of New York, [SD N.Y.2003, Scheindlin, J.] [“where speech is regulated or proscribed based on its content, the scope of the effected speech must be clearly defined”]; see also Vives 405 F.3d 115, 123–124 [2d Cir 2004, Cardamone, J., dissenting in part, concurring in part] [Penal Law § 240.30(1) unconstitutional on its face and as applied]; Schlager v. Phillips [SD N.Y.1987, Brieant, J.] [statute is “utterly repugnant to the First Amendment of the United States Constitution and also unconstitutional for vagueness”] ).

The Future for Aggravated Harassment
It is hard to understand how a statute criminalizing annoying speech could have remained on the books for 50 years in New York and particularly upsetting that thousands of people have been arrested for annoying or alarming speech since the Second Circuit and Attorney General refused to address the statute. But as the Vives case demonstrates, litigation designed to strike down statutes faces significant hurdles, no matter how apparent the statute’s unconstitutionality.

One would think that last month’s Golb ruling would be the proverbial final nail in the coffin, but the fight is not over. As the Law Journal last week reported, legislators are frantically attempting to revive the statute before the close of this year’s legislative session in Albany. More importantly, constitutional reform litigation is littered with examples of statutes that remain in official compilations and continue to be enforced despite rulings declaring them invalid. To end arrests for annoying and alarming speech in New York, the legislature needs to repeal the offending provision of the aggravated harassment statute, and judicial and law-enforcement agencies need to undertake a concerted educational and training campaign.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.