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NYC Criminal Defense Attorney

Aggravated Harassment 2nd Degree Ruled Unconstitutional


When someone is accused of making verbal threats, unwanted phone calls, emails, text messages, Facebook messages, or other unwanted or threatening messages, Aggravated Harassment in the Second Degree, New York Penal Law § 240.30(1)(a) could have been charged.

It is a crime that has been declared unconstitutional by the New York Court of Appeals in a decision dated May 13, 2014 in People v. Golb. In Golb, the son of University of Chicago Professor Norman Golb, Raphael Golb, attacked the reputation of several Dead Sea Scroll scholars. The Dead Sea Scrolls, found in 1948 near Jerusalem, are a collection of Jewish documents dating from the third century B.C. that, due to their age and consistency with the Bible, are thought to support the integrity of the Bible. Golb published anonymous blogs, impersonated different scholars and professors to criticize other professors and scholars to encourage in-fighting. Golb's father, Norman Golb, argued that the Scrolls were not as old as believed and were written by a wider variety of authors. Robert Cargill of UCLA and other victims did not share Golb's view and became targeted by Golb's son. Using pseudonyms, defendant Golb sent emails throughout the UCLA system criticizing Gargill. Golb did the same to other scholars who didn't share his father's beliefs. The Court upheld the criminal impersonation charge.

Golb was also convicted of aggravated harassment under § 240.30(1)(b).

Aggravated Harassment in the Second Degree, § 240.30(1)(a) states that "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 matter likely to cause annoyance or alarm." [emphasis added]

Golb's aggravated harassment conviction was vacated because the statute was ruled too vague. The Court pointed out that any restriction on speech "must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence" (citing People v. Dietze (75 N.Y.2d 47 (1989)). The Court pointed out that under § 240.30(1)(a) "it is not clear what is meant by communication 'in a manner likely to cause annoyance or alarm' to another person". Generally, a law can be struck down for being vague if it is too vague for the average person to understand.

My reaction to this ruling is that the Court made the right decision. There may have been a time when the telegraph and telephone were the only way to communicate in real time. In those days, you were only supposed to call during certain hours of the day. Since then, long distance calling is much cheaper which has led to an increase in phone calls between vastly different time zones making late night or early morning calls more likely. Also, email, text, Facebook, twitter, WhatsApp, Snapchat, etc., have joined the rapidly growing universe of communication methods. So, it's becoming increasingly hard to pinpoint how and when communication should take place. Section 240.30(1)(a) prohibited communicating in a "manner likely to cause annoyance" but it is clear that in today's world with 24/7 communication and an endless stream of email, texts, and updates, the Court's ruling makes a lot of sense. Section 240.30(1)(a) is clearly too vague in the context of the information age.