morning good morning they have pleased the court my name is ron kuby my colleague joel ruden we represent the appellate rafael gold and this case presents three questions the first is whether the forgery statute as construed by the district court's construction of the new york court of appeals is vague and overbroad second whether the criminal impersonation statute which purported to cabin intended har benefits to reputational injuries is vague and overbroad and lastly whether shuttlesworth requires that the convictions for criminal impersonation be reversed for a new trial and i'd like to address them in th thank you judge reggie i think that there is a fundamental tension between the supreme court's first amendment and vagueness jurisprudence on one hand where you carve out the most space available to protect all forms of speech and the courts and to jurisprudence on the other with which says that you will grant the most deference possible on haiti as corpus even in first amendment cases where the state is penultimate power which is the power to actually put people in jail so there's a real tension in terms of review and i think the way that that tension can and should be resolved is to make very very certain the court of appeals actually reached the merits of the constitutional argument and if you look at the court of appeals decision in kolbe there is no such confidence you know brother revel east here has argued consistently that the court of appeals decision was without constitutional dimension and he has pointed to and correctly i think the fact that no constitutional cases were cited the no constitutional amendments were mentioned of the forgery opinion is exactly two sentences one it quotes the statutory language and the second sentence in the court of appeals says that mr gold's conduct constitutional argument that they thought their narrow construction therefore avoided the constitutional question i think it would be fair only inferrable had they made some reference to some portion of the constitution or even a state law case in their narrowing of criminal impersonation they did not in any way narrow forgery in fact they have broadened it beyond what the prosecution had argued no reference in any of the cases that they cited to any constitutional holdings constitutional positions how can we how can we interpret the court of appeals as not dealing with the constitutional question when the appeal was on the basis of these constitutional yes but as as has been argued repeatedly by the prosecution in this case the complete and utter reliance in dealing with the criminal person nation scratch it and the forgery especially the complete utter reliance exclusively on state law coupled with their very explicit constitutional determination when they declared to forty thirty sub one unconstitutional under first under the first amendment suggests they did not reach the constitutional question i'm still having trouble with that the argument is made it's unconstitutional and stay quit says no no you construing it wrong it has a narrower construction and on that grammar you firm that means because we've construed it more narrowly there's no constitutional problem with it why isn't that the way to look at this because they never said because we've construed it narrowly there is no constitutional problem noddy they could not affirm in the in the presence of a constitutional they could also not affirm in the presence of their view regarding the proper scope of state law without reference to constitutional principles and that's what they that's what they wrote sure we can retry to read into what they say they actually considered but that is what they wrote and i think it go to the next one which is you start reconsideration and at least part of the argument for reconsideration was look the supreme court has sat in shuttlesworth that constitutionally europe likes to do x and they said we're not reconsidering it is an implicit that that we already did we already considered the constitutional argument  act that would be true if a motion to deny argument was a merits determination but but under new york state law itself you only get a merits determination when in fact the court has agreed to re argument and then they either affirm or reject on the merits by the function of new york state law alone it says these are not merits determinations so so with all due respect you can't make that  inference i'd like to sort of turn to the forgery statute because under any standard obviously it's so much easier if we simply apply basic vagueness principles but even if we want to even if i am saying this is contrary to well established supreme court law clearly it clearly is because the forgery statute as construed and again i've been arguing to courts for the better part of a decade that they should perform a rescue operation on this statute but as construed it is any person who makes a false written instrument and clearly saying you're somebody you're not is a false written instrument with intent to deceive is guilty of the crime of forgery there's no requirement in the statute as to who must be deceived or how there's no injury benefit or harm analysis as to nobody has to be injured all you have to do is intent to deceive you don't have to intend any harm beyond that simple deception and that plainly and clearly fails the second prong of the vagueness test because it provides no discretion as to which forgeries which false writings are going to be criminalized and those that are not in our brief we cite hundreds of examples everything from impersonating the koch brothers to two joel republicans pretending to be democrats democrats pretending to be republicans i mean that half the president trumps twitter followers by name are in fact box created for the purpose of magnifying the message so this is not a hypothetical parade of horribles this is what's going on among millions if not billions of people on social media every day and i know that this court or at least two members of this court have disagreed in the past as to the proper how  much vegas has to be allowed before a statute is declared vague but at a minimum a statute must at least require to see intended to cause harm at a minimum and that the statu this statute as construed does not require that intent and it state court did not merit then the only argument the only challenge it had before it was the constitutional a question about whether or not it acted in violation of well established law which i'll get to in a minute but you would agree that we review its rejection of your forgery challenge with that they gave a narrower construction to on state grounds here there was only one argument it was rejected it seems to me we do have have to review their decision with according to  judge i again i think that they're doing that in in this case first amendment context based on two sentences written by the court of appeals the first sentence quoting the statute in the second sentence saying his conduct fell within the  they ruled on other than that it wasn't it wasn't constitutionally defective the very state law grounds that they appeared to invoke narrow the statute that right in any event the supreme court precedent does say that facial load for breath challenges succeed where statute prohibits a substantial amount of protected speech how do you satisfy that here because  i mean we don't look to whether there are some possibilities for impermissible application we are over or at we look at facial over breath any way we look to whether pro speech this statute as written in construed would do has the potential in the discretion of the prosecution to criminalize almost all activity that's going on in the internet where people consistently and persistently write under names other than their own that is to any new york case where the statute has been applied to it circumstances other than to obtain a material advantage or to harm professional reputation or something that would not raise those concerns only this one and i respect the fact it did sit in some circumstances here the district court thought the pursued was reputational harm right but that's not that's not attached to the construction of the forgery statute that's only attached to the construction of the criminal impersonation statute be clear you have to show us though that the statu or under a non de plume under a name that's not the it's expressly defined in the in the definitions for which purports to be an authentic creation of it's eyes and symbol maker but which is not either because the austins of the maker is fictitious or because you really did not authorize it that's correct and as to any any written any writing if one publishes a book under him i mean the the a book that stood on its own merits not attached to the name j k rowling in she rather wrote in the name peter galbraith who presumably is a real person although that's not required under the forgery statute her book got great critical reviews as peter nobody bought it in till she was outed if you will as j k rowling then everybody bought it did she intend to deceive by writing the book under the name peter gall birth she most certainly did she wanted her work as she explain a stand on its own merits d text from the fame of her name so that stephen king when he wrote the bachman books so does every writer a whole body of feminist eighteenth and nineteenth century literature was was that new york has ever applied this statute that brought the evidence is this case that's what they did and i appreciate the fact that the  may contend that they don't need restrictions because they do things the right way and i appreciate that except in this case but there are people out there who may not do things the right way and they do need to be restricted in that's the problem with vagueness it's not we simply like and trust them it's we as a constitutional matter can't hand them this good morning matt please the court i'm vincent revel e c from the new york county district attorney representing the attorney general if i may start on the first question that your honors asked mr q b about the at the deference i would like to try to persuade your honor from the questions that you were asking mr kuby that the new york court projects the new york court of appeals did not modify the statute expressly because it found a constitutional error if it didn't it just rejected the constitutional arguments without discussion so it's really not clear from the decision that they actually found the statute would have been unconstitutional without the modification and that we did you know you know know if they rejected his argument that there was a constitutional problem because he made the argument and judge littman dissented saying that the statutes were unconstitutional the court did not find the statutes unconstitutional it didn't say that it find the statutes and constitutional question is whether they reached the merits of that decision now you can't tell us they didn't and say but apply the deference to me we apply in deference to their determination of a constitutional challenge and if the constitution of the constitutional challenge that  q b made in the in the appeals brief in the court of appeals was is the argument is making now the new york court of appeals did not did not agree with him by taking that argument and discussing it and saying anything about it it just did not do what he asked and instead understand that the suggestion i made to mr kuby was that they couldn't avoid a constitutional question unless they construed their statute and way that that what they were saying was we've constructed more narrowly under state law and now you have no constitutional claim but unless that's what they were saying i'm not sure how you can claim that because if you're presenting the constitutional claim and they don't  l you are saying they rejected the const they did audits there they did they did but i'm not saying what i'm trying to persuade your honor is that they didn't modify the statute because of the constitutional problem or whatever reason they modified the statute they narrowed the statute and and and when we consideration was sought and shuttlesworth grounds that was denied yes now when one is so sure record denies reconsideration i don't see where that is merits by denying reconsideration of the constitutional claim that mr goh was convicted under a statute that had been narrowed in such a way that might have made some of his convictions i'm numb buyable well i don't think the reconsideration motion by itself tells you a lot about whether they made a marriage as you say anywhere i think that the marriage decision before is because the defense made all the arguments in their brief in that was rejected and what the court did what he did it narrowed the impersonation statute that raises a question which was presented immediately to the court of appeals as to whether under shuttlesworth but that's the problem when the state doesn't assume it doesn't make sure that the person was convicted under the constitutional version of the statute didn't say this was an unconstitutional statute they just made a change in new york law and here's the problem though that i have in the in the panel decision on direct appeal in people after narrowing the statute what the majority said was here there was sufficient evidence to support the jury spine gang that defendant that analysis was done on the first appeal and i don't know how we would conclude that the rejection of rehearing is enough to have done it helping out well on the on the first appeal they were saying that overbroad construction informed their decision it's not the shuttleworth analysis sufficiency but all of that has to be based upon a finding that the initial statute was unconstitutional you know it seems to me that the  vacated and that argument presented to the court of appeals the entire the entire subject of of it is it unconstitutional and if so i'm what must be done it seems to me implicit in that is the shuttlesworth it may not have been argued until the court of appeals said what it said and then it was raised in the petition for a hearing but it's implicitly in the end in the initial appeal so it seems to me tha the that in the initial decision of the court of appeals it i mean it didn't explain things all that well and some things it didn't explain at all but the shuttlesworth business was implicitly involved in the constitutional issue and it seems to me that the court of appeals resulted on the merits in that right but by rejecting the defense argument without discussion but the because it was an argument that the convictions need to be vacated because of the over breadth statute and the the problem for us is to say simply using the shuttlesworth standard can that decision stand with respect to the impersonation statute is it is it is it is it harmless beyond reasonable doubt to narrow the criminal impersonation statute the way it was with respect to the facts of his case well naturally the district judge thought so is respect to most of the  has no role on this the on this the state court relied on constitutional grounds that the alabama state court in shuttlesworth didn't say that it was relying on a constitutional ground didn't mention the constitution at all  court said that it was the constitutional defect that was the reason for the need for sending it back how does that make sense do you think to process allow someone to be convicted on anything other than what the statute prohibits so once the state court narrows the statute whether right by relying on tax or unconstitutional d fax or whatever and once it narrows the statute isn't it only constitutionally permissible to convict a person of that narrow diversion of the statute well as far as whether there is a federal problem but yes if you have a problem is that you can only be convicted of something that is a crime but he was initially he was convicted of what was charged it was instructed to the jury according to the elements of the crime the jury found him guilty and the new york court of appeals then said go to the jury on that merit theory and that's the shuttlesworth problem the court was satisfied there was sufficient evidence to convict him on the merits but he didn't go to the jury on the merits theory said so doesn't that raise the concern whether we can say with the requisite degree of certainty that the broader version that they were given didn't in fact the the the verdict because that it's really just a question of jury instructions it's whether the jury is told properly what the on of the crime is so that's that it would at least become a homelessness question but i think that the point that i'm not able to convince your honor of is that the shuttlesworth requires that there actually be a constitutional defect in the first place if there was no constitutional defect in the first place it's just new york saying that new york is going to require a little bit more but that there was no constitutional problem in the initial conviction so it wouldn't be a federal question to be addressed and if they're saying as a matter of new york law it would have been good to have this requirement for a reputational injury but we have it here they're just making sure that they have enough to prove what he was guilty of there at the trial itself he was tried for a constitutional but early in the words it was it was nothing unconstitutional about the crime he was convicted of it so th appealing the court's decision to reverse the convictions on accounts thirty three and thirty seven which are two e mails in which the defendant basically is disparaging his from it's very difficult to tell why he sent it how can anyone say with confidence that he sent that for the purpose injuring somebodies reputation his father you know i think doesn't make any sense in those cases it's part of the overall combined practice that he was doing with all of his emails that you would have to look at all of the evidence as to what his intent was those e mails by themselves wouldn't have been as clear and that's why we didn't make the is a big difference between them yes frankly i don't really see why you struggle so hard to to come to defend some extremely dubious counts here when it seems to me you should be focusing your attention on defending the really seriously harmful schiffman e mail convictions and i agree and the reason that those counts are across appealed wasn't because of those two counts being important but because of the shuttlesworth claim that in our position the shuttles thousand counts that we felt that because there was no constitutional problem with the initial statute that the shuttlesworth claim does not apply and so that's the reason for appealing those two counts they were part of that that one thousand counsel be the important argument for you to be making his with respect his having i'm a plagiarized from from father gold and then asking asking that nobody on asking the dean the provost and all of his co professors and so forth don't let anybody know about this don't tell any students don't talk about it it would damage my reputation i that can that can't be seen as having any other intention to do serious harm to shift men's not only reputation but perhaps his job at the university right and no reasonable jury instructed in any other way would have found him not guilty under those counts by any standard that's true so that would be harmless was regardless of any of the other findings in this case and just let me at the end as to the forgery counts that there is no prosecution of marriage use of pseudonyms here it was only the use of actual other people's names who did not consent to the emails ever were not attempting to stop parody or satire and the jury was so instructed so those counts of not be vague here the statute the the forgeries that you explicitly in its definitions applies to any circumstance in which one writes anything under a name other than one's own including fictitious names that do and that if i simply publish something publish something on the internet or wherever i using a fictitious name that's right how could that be defended as it's within the constitutional in new york it wouldn't be a crime to use a fictitious name if there was no intent to deceive but what i mean there is an intent to deceive if you're intending if you're intending at it not be known that you are the author of the family if you are publishing it in a fictitious name because you don't want to know you know here i am a judge of the second circuit i don't want people to know that it's me who's writing this thing that i put on the internet  is instructed that he had to be intending to deceive the people as to whether he was that particular real person impersonating the president but i'm talking about the statute i'm not talking about its application to the fact i'm talking about the over breadth of the statu e i mean i don't think that he can raise that argument here when he's clearly not aggrieved by that it hasn't been used to prosecute people for just publishing a book with a fake them and i can't imagine that it ever would be a i don't  were actually to affect the to make it impossible to legally write a book under a different name than it would be but that's not how the statutes ever been used perhaps it almost seems to me that you're arguing that the state didn't narrow the statute the circumstances without any intent to injure or benefit materially or something that loss that that was found with respect to the criminal impersonation statute well there is at least the intent to deceive and the intent to deceive arises in some of the circumstances that your adversary and members of the panel have put forth to you that you say wouldn't wouldn't  and as having a tortious element to it that there is harm and if i read a book written by mr jones and it turns out it was written by mr smith i am not i may be deceived but i'm not being deceived in i gree that following and i latin right is sujan generis your position would be right you read to see even you know in context of the other elements i've been asking courts to do that again for close to ten years and each time each time they say no no no intent to deceive is enough the court of appeals again two sentences they made it very clear that they require required no additional element inherent in the wording that there has to be some torturous or malignant a consequence to let's have that shot let's have that trial then and retry because that's not how the jury was instructed the jury assume for a moment and i know you disagree with this but assume for a moment that the district judge is right that on all but two counts of conviction the jury had to have found an intent to either defraud to get some benefit for his father or to ensure by injuring reputation why would we reverse those convictions from we know that  jury would have had to have made the findings that satisfy the not overly broad injury and to fraud kronk's of the statute but i think there's there's i'm hearing two questions there at least i'll answer the two questions i'm hearing the first one is that if this is vague as to the second prong it doesn't provide any guidance and this does imply first amendment concerns then it is vague even under city of us because there is no requirement of harm in the statute if the second question which is i believe what judge laval was saying is there is no conceivable interpretation other than rafael kolb intended to harm shipments reputation and i submit to you that is not correct there is sufficient evidence certainly but raphael ball testified and he said my goal was not to harm schiffman reputation my goal was to inform people of the truth to stir up controversy to talk about the way the monopolists had excluded contrary points of view there were his personal emails to his brother in which he specifically said we have no reason why my goal was not to harm shipments reputation my jane admitting his is plagiarism and then saying every he's got to hush this up nobody can talk about it because it would harm me there's no way one can contemplate that without recognizing that it's going to be harmful to shift man's reputation and that's the deception is of course vio and so i mean if one you know if i am if i shoot a gun out there like this in that direction just because my purpose is just to because i want to enjoy the pleasure of shooting the gun it still i have i have to contemplate that it's going to cause the harm in that has to be it except if we had had the trial that that told us  ever and expanding universe of anything that in fact the court of appeals takes this circle of reputation when jury we could have focused our defense on that for example we could have brought in experts on academic practices who would have testified as some of the lay witnesses did that nobody took this seriously nobody took this seriously for a second nobody even did this why you are in me once an investigation accused him publicly of plagiarism he decided to sit down and sort of compose his opus explaining himself but that was entirely his decision he never testified to any reputational injury there was no evidence of any reputational injury and in fact although it's post post hope it's not day or as the record he said he got a big promotion out of it it didn't bother him at all so if we could have a trial where the issue is not the lowest common denominator did mr goldman tend to be annoying which was what had to be found under two forty thirty sub one if you act with intent to be annoying and you engage in the likelihood of conduct it's likely to annoy your guilty and since  is the least common denominator of all of those counts as a harm if there is no indication that the jury undertook the inquiry that it needed to take we couldn't focus our defense on what is now apparently the one area that the court of appeals landed and certainly the prosecution didn't focus on that they talked about stirring up controversy creating trouble dragging another person into a dispute influencing an academic debate  as well as harassing annoying all of those were all the words in in some mention in opening statements and i was begging the court please just just tell me here day of trial would somebody please tell me what is the her what is that i'm defending against what is the harm in of course they refused to do so so we should have the opportunity we must have that opportunity consistent with due process to to defend that case thank