Argued: June 23, 2017
Raphael
Golb appeals the denial of habeas corpus relief as to his
state court convictions for criminal impersonation and
forgery. We affirm in part and reverse in part: 1) Golb was
convicted under an overbroad version of the criminal
impersonation statute that has been narrowed by the New York
Court of Appeals, and some of his convictions are therefore
invalid; 2) his First Amendment facial challenge to the
criminal impersonation statute fails; and 3) his First
Amendment challenge to the forgery statute as construed by
the New York Court of Appeals succeeds in part and fails in
part. AEDPA deference applies to the New York courts'
decisions as to the second and third of Golb's
challenges, but not to the first.
RONALD
L. KUBY (Leah M. Busby, on the brief), New York, New York,
for Appellant Raphael Golb.
Joel
B. Rudin, New York, New York, for Appellant Raphael Golb.
VINCENT RIVELLESE, (Alan Gadlin, on the brief) on behalf of
Cyrus R. Vance, Jr., District Attorney, New York County, for
Appellee Attorney General of the State of New York.
Before: JACOBS, LEVAL, and RAGGI, Circuit Judges.
DENNIS
JACOBS, Circuit Judge:
In the
academic debate about who wrote the Dead Sea Scrolls,
petitioner-appellant Raphael Golb ("Golb") was
deeply committed to the side championed by his father Norman
Golb. To further his father's position, Golb wrote
several emails impersonating other scholars in an apparent
effort to at least embarrass proponents of the rival view
and, in some instances, harm their reputations. A Manhattan
grand jury charged him with, inter alia, multiple counts of
criminal impersonation in the second degree and forgery in
the third degree. He was convicted of most of those charges
and pursued appeals up through the New York Court of Appeals,
which vacated several convictions and narrowed the scope of
the criminal impersonation statute, but left most of the
convictions intact.
In this
federal habeas proceeding, the District Court for the
Southern District of New York (Failla, J.) granted
relief from two of Golb's convictions, and denied it as
to the other 17.
Golb
makes three arguments as to why his surviving convictions
must be vacated. In opposition, the state prosecutors argue
on the merits and rely on the deference owed to state courts
under the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214
(1996).
• First, Golb invokes Shuttlesworth v. City of
Birmingham, 382 U.S. 87 (1965), arguing that his
impersonation convictions must be vacated if the jury might
have relied on the impermissibly overbroad literal terms of
the statute that the Court of Appeals subsequently narrowed.
We owe no AEDPA deference on this question because the New
York Court of Appeals did not answer it "on the
merits." 28 U.S.C. § 2254(d). We conclude that four
of Golb's criminal impersonation convictions must be
vacated under Shuttlesworth, but that five of them
are so reliably supported by the evidence that they survive.
• Second, Golb argues that the criminal impersonation
statute is facially unconstitutional. We do owe AEDPA
deference as to this challenge, and we conclude that the New
York courts' resolution of this issue was not so
unreasonable as to require habeas relief.
• Third, Golb argues that the criminal forgery statute
is unconstitutionally overbroad. We conclude that the
statute, as interpreted by the trial court and the Court of
Appeals, is so clearly overbroad as to be facially
unconstitutional notwithstanding AEDPA deference. We narrow
the statute to save it, and grant the habeas petition as to
some (but not all) of the forgery convictions.
I
This
case arises from a protracted academic debate about who wrote
the Dead Sea Scrolls, ancient documents discovered in the
1940s and 1950s in a group of caves near Jerusalem. Most
academics think that they were written by a Jewish sect
called the Essenes who reportedly lived nearby (the
"Essene Theory"), while the defendant's father
Norman Golb, a professor at the University of Chicago, argues
that they had many disparate authors and were hidden in caves
when Roman armies attacked Jerusalem in 70 A.D. (the
"Golb Theory").
The
defendant is not a Scrolls scholar, but he has devoted much
time to advocating for his father's theory online. His
anonymous and pseudonymous advocacy raises no issue here. But
one of Golb's email tactics was to impersonate other
Scrolls scholars. The surviving criminal counts in this case
are based on ten such emails, in which Golb impersonated,
variously, Frank Cross, Lawrence Schiffman, and Jonathan
Seidel--all scholars of the Scrolls. We review the three
impersonations in turn.
In
mid-2008, Bart Ehrman, a proponent of the Essene Theory, was
invited to lecture at a museum exhibit about the Scrolls.
Golb wrote an anonymous blog post arguing that Ehrman should
not have been invited and criticizing the Essene Theory. Golb
also created an email address (frank.cross2@gmail.com) which
he used to impersonate Frank Cross, a well-known Scrolls
scholar who has taught at Harvard and Wellesley. Using that
email address, Golb sent emails to four scholars at the
University of North Carolina--the host of the exhibit--which
contained a link to his blog post and stated: "It looks
like Bart [Ehrman] has gone and put his foot in his mouth
again . . . I'm seeing this crop up everywhere on the
web." Joint App'x at 1066. The email was signed
"Frank Cross."
In the
fall of 2008, the Jewish Museum in New York City invited
Professor Lawrence Schiffman of New York University, also a
proponent of the Essene Theory, to lecture at its exhibit on
the Scrolls. Golb published an article using the pseudonym
"Peter Kaufman" which accused Schiffman of
plagiarizing some of Norman Golb's work. The same day,
Golb created the email address
"larry.schiffman@gmail.com" and sent the following
message to four of Schiffman's graduate students,
including a link to the "Peter Kaufman" article
accusing Schiffman of plagiarism:
Miryam, Sara, Cory, Ariel,
Apparently, someone is intent on exposing a minor failing of
mine that dates back almost fifteen years ago.
You are not to mention the name of the scholar in question to
any of our students, and every effort must be made to prevent
this article from coming to their attention. This is my
career at stake. I hope you will all understand.
http://www.nowpublic.com/culture/plagiarism-and-de
ad-sea-scrolls-did-nyu-professor-snitch-chicago-historians-work[1] Lawrence Schiffman
Id. at 1130.
The
next day, Golb sent another message from the
larry.schiffman@gmail.com email address, this time to every
member of Schiffman's department at NYU, again attaching
a link to the "Peter Kaufman" accusatory article:
Dear
colleagues,
Apparently, someone is intent on exposing a minor failing of
mine that dates back almost fifteen years ago.
Every effort must be made to prevent this article from coming
to students' attention. This is my career at stake. I
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