New York Court of Appeals Roundup

Preserving Issues for Appellate Review

, New York Law Journal

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In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discusses cases involving the application of various criminal statutes to an Internet harassment campaign, the standard for preserving issues for appellate review and the question of when a municipality is acting in a proprietary capacity for purposes of a negligence claim.

Originally appeared in print as Addressing Standard for Preserving Issues for Appellate Review

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  • Quixote

    This article lacks any serious critical perspective on the decision being discussed; one might have expected more from a publication as significant as the New York Law Journal. The authors state:

    "The court agreed that the statute cannot be applied to any benefit or injury, no matter how slight, but the court found that reputational damage was a sufficient form of injury for purposes of the statute. Accordingly, the court sustained the judgment with respect to the counts arising out of defendant‘s impersonating emails intended to harm the reputation of scholars who disagreed with his father."

    All sorts of problems are concealed by this bland summary of the court‘s decision. Was the jury instructed on reputational damage? Apparently not. So, how do we get to the "accordingly"? Is the court substituting its own judgment for that of the jury? Furthermore, what exactly do we mean by reputational damage here? What if Golb intended to expose the perceived misconduct of the academics involved? Would that be the same as an intent to harm their reputations?

    Yet another surprising omission: short shrift is given to the discussion of criminal libel and the First Amendment in the dissenting opinion, and not a word is said about the phenomenon of Internet satire and impersonation, or about any of its literary antecedents. Surely it is no minor matter that with this case, satirical online impersonation has suddenly been criminalized in an American state. All satire aims to damage the reputation of its victims: hardly an adequate justification for this peculiar decision.

    For discussion of these and other pertinent issues, see the case documentation at:

    http://raphaelgolbtrial.wordpress.com/

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