Hot Docs: Identity theft is not a protected form of speech, appeals court rules

February 14, 2013

Identity theft speechAs an attorney, you see the use of interesting legal arguments, especially in situations where the facts are stacked against the party advancing the arguments.

More often than not, the party facing the factual disadvantage is the defense, whether it is civil or criminal.  Thus, these unique legal arguments are usually progeny of the defense.

A recent ruling from New York highlights an example of what would certainly qualify as an “interesting” legal argument by the defense.

The case, People v. Golb, is an appeal from a criminal jury trial convicting the defendant, Raphael Golb, of various counts of identity theft and forgery.

Golb’s argument on appeal?  That the identity theft is a form of speech protected by the First Amendment.

Once you get into the facts of the case more, however, you realize that the argument isn’t as completely outlandish as it may first seem (although it still certainly is peculiar).

Hot Doc: People v. Golb

Source: Thomson Reuters News & Insight – National Litigation

Golb’s father is “an expert on the Dead Sea Scrolls,” and Golb set up email accounts in which he pretended to be other scholars who disagreed with his father’s opinion on the origin of the Scrolls.

Among other things, Golb sent some emails under the false guise of one of his father’s rivals and “purportedly admitted to acts of plagiarism.”

The free speech argument comes up in a couple of areas.

First, Golb argued that the emails were only intended to be satire or parody, which are protected forms of speech under the First Amendment.

Usually used as a form of criticism, satire and parody are indeed protected forms of speech under the First Amendment, and one of the key elements in identifying them as such is some form of imitation of the subject of the criticism.

While it’s true that Golb was using the emails to criticize others and that he was imitating the subjects of his criticisms, there is still one vital element missing: others must know that it is not the original and is instead a parody or satire.

Instead, Golb clearly intended the emails to appear as though they were written by his father’s rivals, and seemingly included nothing else in the messages to make the average reader believe that they were parodic or satiric in nature.

Even if Golb had included statements in the emails that were so outlandish that no reasonable person could have taken them seriously, his argument might have stood a chance.  But such wasn’t the case: Golb apparently wanted the emails to appear as much as possible as though they were penned by his father’s rivals.

Golb’s second free speech argument was that the emails were part of an academic discussion, which is also protected by the First Amendment.

The court’s reply to this argument was that Golb was not prosecuted for the content of the emails, but for “the act of impersonation and its unlawful intent.”  Further, the court held that “[t]he fact that the underlying dispute between defendant and his father’s rivals was a constitutionally-protected debate does not provide any First Amendment protection for acts that were otherwise unlawful.”

Yes, the arguments seem a bit far-fetched, but when the facts and the evidence are so stacked against you, the only alternative to a thin legal argument is giving up.

Obviously, the latter is an untenable option, especially to criminal defendants, so it’s unlikely that we’ll be seeing the end of these imaginative legal theories anytime soon.