Criminal Impersonation and Criminal Libel

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)?

Comments

[Rossami]

If the decision is that laws like this are not a good idea, the inevitable reaction would be to counter-impersonate folks like Castrejon with equally offensive remarks designed to incite riot and violence against him. (After all, if what Castrejon did was not illegal, doing it back to him must also be legal.) Since escalations of intentional incitement to violence is an obviously worse social outcome, there must be some legal consequence that holds Castrejon accountable.

That said, a poorly worded law would outlaw parody. Although looking at the very poor quality of parody these days (especially in the comments here), maybe that's not entirely a bad thing.

[Dr. Ed 2]

I look at this very differently -- it's a crime to make a false report of a crime and conspiring to show up and shoot a governmental official would be at least one crime, likely a half dozen.

If I call up the police and tell them that my neighbor is going downtown to shoot the mayor, I can be prosecuted for that. How is me pretending to be him on the internet and stating the same falsehood any different?

That said, the real issue here is the extent to which BLM has become a terrorist organization that needs to be crushed the way the KKK was.

[Rossami]

Huh? There's nothing in the article above suggesting that Castrejon made any fraudulent threats to shoot any government official.

But even if he did, yeah, there's a really big difference between making a false report to the police and saying the same thing to, well, anyone else. It's a crime to tell the police that I was the victim of a fender-bender in the parking lot. It's no crime to tell my wife that same thing rather than admit that I carelessly backed into the telephone pole.

[John F. Carr]

How much restitution?

The law does not seem out of place among other defamation and harassment laws. In Massachusetts the Supreme Judicial Court said planting a GPS tracker on somebody's car could be considered criminal harassment because it would "cause a reasonable person to suffer substantial emotional distress." If learning that somebody had tracked your car was cause for prosecution, surely the intentional acts in the California case should be.

[Dr. Ed 2]

How about suing BLM?
It's got *lots* of money, more than the Klan ever did, and wasn't the Klan sued into bankruptcy?

[John F. Carr]

What is the legal status of BLM? You can't sue a name. It is difficult to sue an unincorporated association. Your lawyer will want to find a legal person with deep pockets to make sure his fee will be paid.

[David Nieporent]

https://www.advocate.com/race/2017/9/29/cant-sue-movement-or-hashtag-judge-rules-black-lives-matter-case

[subpatre]

There's some money to be had, although it looks like the insiders are blowing it already
https://nypost.com/2021/04/10/inside-blm-co-founder-patrisse-khan-cullors-real-estate-buying-binge/

There's other venues as well, since very little has ever been donated to BLM organizations.

[DaivdBehar]

Again, the failed lawyer profession is allowing massive defamation and impersonation. These continue because they work. PC is case, and people lose their jobs and memberships.

Torts should shift to the people causing the damage. People who act on these impersonation should be sued and should pa for any damage. How about arresting the Democrats spraying BLM graffiti? No, the lawyer skunk protects them instead.

This is the most toxic occupation in the nation, and must be stopped to save our country.

[Michael D]

Sounds like it should all be a civil matter rather than a criminal law. Anyone who complains about mass incarceration and then champions the creation of more criminal laws where civil adjudication ought to be the remedy is just lying to themselves.

What did Judge Kozinski write in Criminal Law 2.0...something to the effect of eliminating a certain number of criminal statutes every day? He is right.

[Absaroka]

Here are a couple of hypos:

1)You are hiking in bear country. Someone who doesn't like you sneaks around your camp laying out strips of bacon. You are injured when a bear comes to investigate.

2)Someone who wishes you ill starts a rumor in the local criminal community that you keep $100k of cash hidden in your house. The rumor spreads until some local ne'er do wells break in, tie you up, and demand that you tell them where you have the money hidden.

Are these best handled as civil or criminal matters? If it is handled as a civil matter, how should society handle a judgement proof person who repeatedly tries to harm others in these kinds of ways?

[Armchair Lawyer]

Indeed. In many ways this type of malicious misrepresentation has more in common with swatting someone, than in simple slander.

[Armchair Lawyer]

I think "only" a year in jail for malicious actions like this is likely too little.

This type of malicious behavior can destroy someone...or end up endangering their life.

[John F. Carr]

I think a year is more than enough. Felony charges should be reserved for serious crimes.

[Armchair Lawyer]

This is a serious crime. Look at the results. Being forced to leave one's house. Violent threats issued against them. Mass hateful vandalism. Only through luck was someone not fatally killed.

There are many parallels between this type of malicious action and "swatting" someone. This was more planned, in depth, and insidious in many ways.

[Cal Cetín]

I know this is a serious issue, but "fatally killed" is amusing.

[John F. Carr]

A year in jail is a lot more than the victims in this case suffered.

[Armchair Lawyer]

Prison is not just about equating the time served with the monetary cost to the victim. If we were to do that though...

Grand Theft Auto, for example, often gets 5 or more years in prison. An average car is ~$30,000

Between the loss of job, being forced to move out your own home, the emotional damage and trauma, the reputational damage...

All together that would come out to at least the cost of a car...

[Dr. Ed 2]

"This type of malicious behavior can destroy someone…or end up endangering their life."

Or endanger the life of the perp.

I know people whose response to this would likely involve killing everyone involved.

That's what _Romeo & Juliet_ was really all about -- that the state and not individual families should dispense justice. And if the state doesn't do so, others will. (That's what the BLM folk are failing to understand -- sooner or later, they will hassle the wrong person.)

[Archibald Tuttle]

Wouldn't identity theft laws come into play in this case?

[Armchair Lawyer]

Sadly, not necessarily. Identity theft laws typically have an element of fraud associated with them. You steal someone's identity to "get" something personal or financially related.

Here, the person stealing the identity isn't "getting" anything. They're using the identity to slander the person.

[Ben of Houston]

But I think identity theft might also count as the "value" you are getting is non-monetary, but clear, vengeance. Various prostitution have held that non-monetary payment is still payment.

If there wasn't a specific law, I think harassment laws would generally cover this. Criminal threats might as well, as you indirectly caused the death threats. It's definitely easier when there's an explicit statute.

As it's political, terrorism charges might actually apply as well.

[Rossami]

In almost all cases, no, the non-monetary "value" would cause your offense to fail to meet the definition of the crime. Barter may still be considered a non-monetary payment (which is the case for your prostitution examples, I think) but vengeance would be too intangible.

Harassment laws won't cover this since the bad communications were not targeted at you. The actual harassment was made by the people who fell for the spoof and believed that the impersonated communications were real. By the way, should those people be punished? Probably. But that shouldn't let the impersonator off the hook.

[jdgalt1]

I agree with this law, but would write it so that the intent to harm need not be proven (or at least the jury is allowed to reasonably infer it from the predictable results of defendant's behavior). I would also extend it to cover means other than electronic means.

[Jordan Brown]

I too think that this should be a form of identity theft. If current identity theft laws only cover financial gain, that just means that they need to be fixed. There are any number of reasons to steal somebody's identity; they should all be under the same umbrella.

[Cal Cetín]

What's wrong with just having criminal libel laws for these situations, with the necessary Supreme Court-mandated exceptions for public figures, etc?

[Eugene Volokh]

I appreciate the argument for criminal libel laws -- I hope to consider it in more detail in an article (tentatively called Criminal Libel Laws: Survival and Revival) -- but note that the Supreme Court has never barred criminal libel prosecutions in public figure / public official cases.

Garrison v. Louisiana (1964) holds that in such cases the government must prove knowing or reckless falsehood, and I expect the same would be true even in private figure cases (at least on matters of public concern), cf. Gertz v. Robert Welch, Inc. (1974) (requiring knowing or reckless falsehood in such cases even for civil punitive damages). But if the criminal libel statute requires such a mens rea, as the remaining statutes generally do, then that should be constitutional.

Or do you think there should be a categorical exception from criminal libel laws for statements about public figures and public officials, even if the First Amendment precedents don't require it?

[Cal Cetín]

"Or do you think there should be a categorical exception"

Oh, dear, no, I was thinking of an exception crafted to pass Supreme Court review - so I suppose it wouldn't be an exception so much as increasing the burden of proof if a public figure is involved.

[DaivdBehar]

As usual, the lawyer has it backwards. It should be suing the people who actually damage the plaintiff. the employer, the club, the licensing board, the spouse, who act on the false allegations.

[Robert Efroymson]

I usually hear "as applied" being used to invalidate a law, but in this case, it seems to me that the law "as applied" to Castrejon is entirely just.

Not my legal brain talking, rather a gut reaction to the incredibly obnoxious behavior.

[Duck916]

The cited case seems like a good reason to have a criminal libel law.

I think that, with the rise of "deep fake" tech, instances of similar impersonations will become more prevalent and harder to identify as fake. So having some criminal liability attach seems to be a good thing.

[Don Nico]

"would they be a good idea if limited to credible impersonation intended to damage reputation (or to threaten or to defraud)"

Certainly the Orange Clown's 4 years in the WH were an attempt to deliver a less than credible impersonation of the President of the United States intended to damage the reputation of the office

[Cal Cetín]

"And what does this inkblot look like to you?"

"Donald Trump raping the Constitution!"

"And this one?"

"Donald Trump in a clown suit!"

"You seem really obsessed with Donald Trump."

"*I'm* obsessed, *you're* the one showing me all these political cartoons!"

[ReaderY]

I think that adding an element where recipients of the message are induced or provoked to harm the pretended speaker reasonably makes the crime distinct from and more serious than simple identify theft. Likewise, the impersonation element makes the crime distinct from and more serious than simple criminal libel.

[EscherEnigma]

In this case, you have a person impersonating multiple other people with the intent of damaging their reputation, livelihood, and provoking damages (both to property and, perhaps, body).

Suffice to say, this should be criminal. If the current statute is unsatisfactory, I expect a replacement one or a plausible explanation of how to use a different one (to normal people, not just lawyers).

Freedom of speech does not excuse lying to endanger others (unless the lie is big enough. See: weapons of mass destruction, religion).

[TwelveInchPianist]

"If I ever find you I will put a bullet in your head."

It seems like this is a true threat, and punishable as such.

[David Nieporent]

I can't believe Golb used to show up all the time in random threads here to irrelevantly troll about his criminal acts, and now that there's one actually about him, radio silence.

[John K. Wilson]

It is important to provide an exemption from the law for parody falsification efforts, such as Dan Sinker's @MayorEmanuel twitter account, https://twitter.com/mayoremanuel
Under the Falwell precedent, it should be easy to carve out an exception for parody. I am opposed to all defamation law, but I might support anti-impersonation rules because there is no question of fact vs. opinion or silencing criticism of someone, just the pure fraud of pretending to be someone else.