Golb v. Attorney General of the State of New York, 870 F.3d 89

Background

Raphael Golb anonymously and pseudonymously sent emails impersonating Scrolls scholars (Frank Cross, Lawrence Schiffman, Jonathan Seidel) to promote his father’s Dead Sea Scrolls theory and to discredit opponents.
He was indicted in New York on multiple counts including second-degree criminal impersonation (N.Y. Penal Law § 190.25(1)) and third-degree forgery (N.Y. Penal Law § 170.05). Ten impersonation and ten forgery convictions remained at issue on habeas.
At trial, the jury was not given limiting definitions of key terms such as “injure” or “deceive.”
The New York Court of Appeals narrowed the meaning of “injure” in the impersonation statute to include tangible/pecuniary harm, interference with government operations, or harm to reputation, and affirmed most impersonation convictions but did not define “deceive” for forgery; it affirmed the forgery convictions under an interpretation treating “deceive” as simply causing another to believe something false.
On federal habeas, the Second Circuit applied AEDPA deference to the state courts’ merits determinations except for a Shuttlesworth-based claim (whether convictions must be vacated because the jury might have used the statute’s originally overbroad wording). The court: (1) vacated some impersonation convictions under Shuttlesworth and left others; (2) rejected a facial First Amendment challenge to the impersonation statute under AEDPA; and (3) found the Court of Appeals’ broad construction of “deceive” in the forgery statute unconstitutional under McIntyre, narrowed the statute, and granted habeas relief as to some forgery counts.

Issues

Issue	Plaintiff's Argument (Golb)	Defendant's Argument (State)	Held
Whether convictions must be vacated under Shuttlesworth because NY Court of Appeals later narrowed the impersonation statute	Golb: convictions invalid if jury might have relied on overbroad pre-narrowing wording; entitled to new trial	State: Court of Appeals’ affirmance and later denial of reargument constitute merits adjudication deserving AEDPA deference	No AEDPA deference; vacated 4 impersonation convictions (where jury may have relied on overbroad meaning) and affirmed 5 others supported by evidence
Facial First Amendment challenge to criminal impersonation statute (overbreadth/vagueness)	Golb: statute criminalizes substantial protected speech (e.g., parody); also vague as narrowed to include reputational harm	State: statute targets unprotected impersonation-related harms and can be limited to legitimate harms; narrowing cures concerns	AEDPA deference applies; challenge rejected — statute (as narrowed by NY Court of Appeals) is not unconstitutionally overbroad or vague
Facial First Amendment challenge to forgery statute as construed (meaning of "deceive")	Golb: Court of Appeals’ interpretation ("deceive" = cause belief in falsity) sweeps in protected anonymous/pseudonymous speech and is overbroad	State: conviction affirmed because defendant intended to deceive people; interpretation reasonable	AEDPA deference applies but Court finds that the Court of Appeals’ broad reading conflicts with Supreme Court precedent (McIntyre); statute narrowed ("deceive" read to require deceit causing harm/defrauding) and habeas granted as to 5 of 10 forgery counts

Key Cases Cited

Shuttlesworth v. City of Birmingham, 382 U.S. 87 (vacatur required when state court later narrows statute such that earlier conviction may have relied on unconstitutional construction)
Osborne v. Ohio, 495 U.S. 103 (explaining application of Shuttlesworth where state supreme court narrows overbroad statute)
Harrington v. Richter, 562 U.S. 86 (presumption that state court adjudicated claims on the merits; federal habeas review under AEDPA)
Johnson v. Williams, 568 U.S. 289 (when to presume state-court adjudication on the merits for AEDPA purposes)
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (anonymity/pseudonymity as protected First Amendment activity)
United States v. Williams, 553 U.S. 285 (overbreadth doctrine: substantiality requirement)
I.N.S. v. St. Cyr, 533 U.S. 289 (constitutional-avoidance canon: adopt narrower statutory construction if fairly possible)
McNally/McIntyre-related precedent relied upon for First Amendment scope and lenity: Rewis v. United States, 401 U.S. 808 (rule of lenity)