The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Most states no longer have criminal libel laws, which generally punish knowing lies that damage people's reputations. But some have created criminal impersonation statutes, which (among other things) punish a particular kind of libel: one accomplished by pretending to be a person, and then saying offensive things in that role, which damages the person's reputation.
The New York Rafael Golb / Dead Sea Scrolls case offers one example of how the criminal impersonation statute can be applied. And I just came across another, in California, which just led to a man to be "sentenced to serve 180 days in jail [suspended, provided he not reoffend for the next year], placed on probation for one year, and ordered to pay victim restitution." Here's the People's Version of the Facts from the prosecution's sentencing brief:
On June 28, 2020 Carmen Gonce … entered the Sandbox Coffee wearing a mask and complained because the cashier was unmasked. The cashier, Cebriana Habicht, was a trainee and the daughter of Gina Bacon …. Habicht told the customer she should do her homework. Gonce started filming Habicht and Habicht photographed Gonce.
When Gonce left, Habicht photographed Gonce's car and got her name off of the receipt because Gonce used a credit card. Habicht told Bacon what occurred and provided Bacon her video. Bacon then allegedly posted the photos and Gone's name on Bacon's group's Facebook page This kicked off an Internet campaign for and against Gonce/Habicht and Sandbox Coffeehouse (where Habicht only worked for one day.) Sandbox Coffeehouse suffered lost business, reputation and vandalism.
Starting on or about July 13, 2020, the defendant Edgar Castrejon began impersonating Gina Bacon, Yoshi Arelas and the We Have Rights Corporation, organizers of the Open Ventura County protests. Bacon was an organizer of the large but peaceful protest at the Ventura Government Center.
Castrejon copied Bacon's real Facebook (FB) page in order to make a fraudulent account in her name. The defendant used his fake Bacon account to make fraudulent virulently racist posts and to claim Bacon's group were bringing guns to a protest at Dr. Levin's house. Dr. Levin is the Ventura County Public Health Officer. He then posted a screen shot of those fraudulent posts in many FB community forums for approx.. two weeks and they went viral.
Predictably, Bacon and her daughter were subjected to violent threats, doxing and contacts with Bacon's employer. "BLM" was spray painted on her house and the coffee shop where her daughter had worked for three days. She had to move out of her house. Her former employer publicly criticized her….
Castrejon's first impersonation of Bacon on Facebook was on approx. July 15, 2020, and contained a screen shot of a post made under the name "Gina Bacon" which stated, "We must keep Ventura county white. We got to get rid of all those #blm things out of here. I would say people but blacks are ruining our way of like and should not be considered human .#keepventurawhite #whitelivesmatter #blacklivesdontmatter"
Following the above post, Castrejon, writing under the name "Johnny Ahpleseed." made the following statement about Bacon's comment, "Hi! My name is Gina Bacon and Im your local neighborhood racist here in Ventura County. Keep an eye out for me when you see me. # GinaBacon #Ventura #VVenturaCounty #RRacist #BBlackLivesMatter #Dox" According to the Urban dictionary, the term "dox" means to put "personal information about people on the Internet, often including real name, known aliases, address, phone number, SSN, credit card number, etc." In Bacon's case, her residence was vandalized….
After articles were written in the newspaper, other victims came forward or were identified. For example, Candy Herzog argued with Castrejon on Facebook regarding a church opening up during COVID. Soon thereafter, Castrejon impersonated Herzog in a FB post by posting the following under her name:
"I hope you and your nigger kids get raped and murdered. If I ever find you I will put a bullet in your head." Another forged post read, "why is it people like you just don't die. Someone should rape your family." Much like what happened to Bacon, Herzog's employer was called and alerted of the post….
The main charge in the case appears to be under Cal. Penal Code § 528.5, a misdemeanor punishable by up to a year in jail and a $1000 fine (plus possibly an order for restitution to compensate the victims):
(a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).
(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.
(c) For purposes of this section, "electronic means" shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person's name.
I assume that the purpose to harm a person's reputation would qualify under the "purpose of harming" language; compare People v. Golb (N.Y. 2014), which concluded that the New York statute's requirement of "intent … to injure" included intent to injure reputation. (A purpose to get some readers to damage the person's property, or physically injure the person, would also qualify, but such a specific purpose might often be hard to prove.)
I'd love to hear what our readers think about this. Are these criminal statutes a good idea? If you think "purposes of harming" or "intimidating" are too broad, would they be a good idea if limited to credible impersonation intended to damage reputation (or to threaten or to defraud)?