Defendant also undertook an elaborate scheme involving the impersonation of Dead Sea Scrolls scholar and retired Harvard Professor Frank Cross…. Defendant’s … create[d] the email address “firstname.lastname@example.org” and [sent] four separate but identical messages to four University of North Carolina scholars. In those emails from the “Frank Cross” email address, defendant attached links to his anonymous blog entries containing [emails that he had gotten from Prof. Bart Ehrman], and stated that “Bart” had “put his foot in his mouth again.” He signed those emails “Best, Frank Cross.”
The case thus apparently involved messages that seemed pretty likely to be understood by recipients as coming from the ostensible sender (rather than from the impersonator), and I think intended to be so understood. It did not involve obvious parodies or jokes; the likely-to-be-taken-seriously vs. obvious-parody line is a familiar one in libel cases, and seems likely to apply to impersonation cases as well.
Here’s the core of the majority’s judgment on the impersonation and forgery question (some paragraph breaks added):
Defendant was convicted of 14 counts of criminal impersonation in the second degree. A person is guilty of this crime when he or she “impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another” (Penal Law § 190.25)….Here, defendant did not cause any pecuniary loss or interfere with governmental operations. While we agree with defendant that the statutory terms “injure” and “benefit” cannot be construed to apply to any injury or benefit, no matter how slight, we conclude that injury to reputation is within the “injury” contemplated by Penal Law § 190.25. Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property, and we believe the Legislature intended that the scope of the statute be broad enough to capture acts intended to cause injury to reputation…. Here, there was sufficient evidence to support the jury’s finding that defendant’s emails impersonating Schiffman, Seidel and Cross were more than a prank intended to cause temporary embarrassment or discomfiture, and that he acted with intent to do real harm.[Text in this paragraph moved:-EV] [As to the forgery counts,] “A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument” (Penal Law § 170.05 ). There was sufficient evidence to show that defendant deceived people by sending emails from accounts in the names of Schiffman, Seidel and Cross, and accordingly we affirm his convictions on those counts.While we affirm most of the criminal impersonation convictions, we hold that the mere creation of email accounts in the names of Schiffman, Seidel, Goranson and Cross (in contrast to the use of those accounts to send emails) does not constitute criminal conduct under Penal Law § 190.25. The mere creation of email accounts that are not used does no substantial harm to anyone.Additionally, the email sent from the Seidel email address to Dr. Kohn, asking her opinion on the differing theories about the Scrolls and whether she was planning to answer Professor Golb’s critique, is insufficient to support a conviction for criminal impersonation in the second degree. Unlike the other emails, this email sent in another person’s name does not prove the requisite intent to cause injury, either to reputation or otherwise. Thus, we vacate the convictions on those counts.
Here is an excerpt from Chief Judge Lippman’s solo opinion, which dissented as to the affirmance of the impersonation convictions:
In dismissing some, but not all, of the second degree criminal impersonation (Penal Law § 190.25) counts, the majority expresses the view that, in addition to addressing impersonation intended to cause economic injury or to interfere with government operations — the objectives traditionally understood to inform the misdemeanor — the crime may also be premised on an intent to cause reputational injury. The statute, the majority holds, should be read to protect reputation when more than a prank is involved, since many people value reputation more than money ….There is, of course, nothing in the language of the statute to prevent its use in the manner proposed by the majority — but that is the problem. The statute, as written, allows a criminal conviction for impersonation provided only that it is meant to be harmful or beneficial in any way. It is hard to imagine any pseudonymous communication that could not be prosecuted under this statute. And, in an age in which pseudonymous communication has become ubiquitous, particularly on the internet, this statute, literally understood, criminalizes a vast amount of speech that the First Amendment protects.The problem of the statute’s substantial overbreadth is not obviated by the court’s pronouncement that the enactment should not be understood to criminalize conduct not intended to cause “real harm.” Apart from the fact that the distinction the majority has drawn does not render the statute benign, since many things said using an assumed identity are constitutionally protected from civil or criminal sanction, even though they are more than pranks and are intended to cause real harm or to obtain real benefit,* this prosecution’s use of the statute was not limited in the way the Court now says it should have been.Although defendant, after the denial of his motion to dismiss on the ground, among others, of statutory overbreadth, sought to have the jury charged so as to limit the statute’s reach, the trial court’s charge did not do that and there is no basis now to suppose that the convictions at issue were rendered in observance of the distinction this Court has retrospectively drawn; five of the criminal impersonation convictions concededly were not, and it is entirely speculative that the remaining nine were.The problem with the criminal impersonation convictions is not that they were insufficiently supported. The evidence as to each of the counts was more than adequate to prove the offense as defined in the statute and as charged. The reason that the convictions must be vacated and the corresponding counts dismissed, is rather that the statute under which they were obtained is unconstitutionally broad, and substantially so.The use of the third degree forgery statute (Penal Law § 170.05) to the same end as the criminal impersonation statute is, I believe, 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.If defendant has caused reputational injury, that is redressable, if at all, as a civil tort, not as a crime. Criminal libel has long since been abandoned (see Garrison v Louisiana, 379 US 64, 69 ), not least of all because of its tendency in practice to penalize and chill speech that the constitution protects, and it has been decades since New York’s criminal libel statute was repealed. The use of the criminal impersonation and forgery statutes now approved amounts to an atavism at odds with the First Amendment and the free and uninhibited exchange of ideas it is meant to foster….
I think the majority opinion is likely right as a statutory matter, and that its analysis is consistent with the First Amendment. The Court has long held that knowing falsehoods about a person that injure his reputation are constitutionally unprotected, under the libel exception to the First Amendment; despite the dissenting opinion’s argument, the Court has never held that criminal libel law is unconstitutional, and indeed it continues to be used in some states. Likewise, the specific category of knowing impersonation of a person that is intended to injure his reputation can be criminally punished as well; indeed, such a narrow prohibition is considerably less dangerous to free speech than libel law is. And the majority’s opinion doesn’t read the statute as covering “pseudonymity” in the sense of a writer making up a pen name (e.g., Samuel Clemens writing as Mark Twain). It reads the statute as covering a writer’s deliberate use of another person’s name, with the intent of injuring that person (whether in his reputation or otherwise) — rightly punishable behavior.
I will blog separately on another important part of the decision, which holds unconstitutional New York’s broad aggravated harassment statute.