First Amendment Doesn’t Protect Encouraging Readers to Make Anti-Semitic Attacks–Gersh v. Daily Stormer
Gersh, the plaintiff, is a realtor living in Whitefish, Montana. She heard about a planned protest of businesses housed in a building owned by Sherry Spencer, the mother of Richard Spencer. (Richard, among other things, went viral for getting punched in the face by an Inauguration day protester.) Sherry apparently called Gersh asking her what she should do, and Gersh said Sherry should sell the building, donate the profits, and disclaim Richard’s views. Sherry allegedly initially agreed and asked Gersh to represent her in the sale, but then changed her mind. She published a blog post accusing Gersh of threatening and harassing her into selling the property.
After Sherry’s blog post, Anglin published the first of thirty articles relating to Gersh in The Daily Stormer. I won’t repeat the titles here, but they generally attacked Gersh for being Jewish and called for a “troll storm” against Gersh. Anglin published publicly available contact information for Gersh, her husband, and her twelve-year old son, and encouraged his readers to contact Gersh and members of her family. Gersh received allegedly 700 hundred threatening and harassing anti-Semetic communications.
Gersh sued Anglin for invasion of privacy, intentional infliction of emotional distress, and violations of Montana’s Anti-Intimidation Act. The magistrate judge recently recommended rejecting Anglin’s First Amendment arguments.
Is Anglin’s Speech Protected Because It Doesn’t Fall Within an Exception?: The court first addresses whether Anglin’s speech fits within a recognized exception to the First Amendment. Gersh did not try to fit Anglin’s speech into a recognized exception (e.g., fighting words, solicitation). Instead, she encouraged the court to balance the parties’ interests and consider the record as a whole. The court agrees with Gersh and says that it can’t answer the question by classifying the speech in question. It must balance interests.
Is the Speech a Matter of Public Concern?: This balancing involved several considerations about the nature of the speech and the topic in question. Anglin argued that the speech was a matter of public concern, which is entitled to the greatest protection. Anglin argued that he was merely discussing Gersh and her “participation in the collective community actions against Spencer. . . .” The court disagrees. The court says Gersh accuses Anglin of communications that have nothing to do with Gersh’s involvement with the Spencers, and that Anglin encouraged Anglin’s readers to send personal hateful, threatening, and harassing messages.
Is Gersh a Limited Purpose Public Figure?: Anglin also argued that Gersh was a limited purpose public figure because she injected herself into the controversy, which would change the level of scienter she would have to prove (i.e., if she was a public figure, it would ratchet up the level of fault required). The court rejects this argument also, saying that it’s not supported by the allegations in the complaint. The facts as alleged show that Gersh “reluctantly” agreed to talk to Sherry and, through that conversation, became embroiled in the dispute. [As a sidenote, the court’s recitation brought to mind that defendants will often make this argument, relying on a plaintiff’s social media activity and affiliation with Facebook cause pages.] Ultimately, the court says this is an issue that could benefit from better development of the record.
Does the “Captive Audience Doctrine” Apply?: The court also addresses the applicability of the “captive audience doctrine”, which says that the government may restrict otherwise protected speech where the speech invades the listener’s privacy interest. (Restricting unsolicited postal mail is the classic example.) Anglin argued that this allowed restriction of messages when they were intrusive, but not, as in this case here, where the messages are “directed to a distant cloud computer servers to which the individual must affirmatively reach out to acquire.” The court also punts on this, but says Anglin’s claims are not dependent on application of this doctrine.
Can Anglin be Held Liable for the Speech of his Readers?: Anglin also raised a First Amendment argument against his being held liable for his readers’ speech. He also argued that Gersh did not allege a sufficient basis under state law. The court says Gersh adequately alleges that Anglin offered “substantial assistance” (or encouragement) to the readers who sent the offensive messages:
The Complaint is replete with allegations that Anglin encouraged his readers to take action against Gersh, and caused them to inundate her and her family with hundreds of hateful and threatening anti-Semitic phone calls, text messages, emails, and other communications. Gersh claims that Anglin repeatedly published her and her family’s personal contact information on his website and modeled the sort of vitriol he wanted them to use with his inflammatory anti-Semitic rhetoric and Nazi imagery – including images of Gersh and her son superimposed on a Nazi propaganda poster and a photo of the gates of Auschwitz. In addition, the Complaint alleges that Anglin “encouraged” his readers to: (1) call Gersh “and tell her what you think. And hey – if you’re in the area, maybe you should stop by and tell her in person what you think of her actions”; (2) leave negative reviews of her business on line; (3) take to Twitter and tell her 12 year old son “what you think of his whore mother’s vicious attack on the community of Whitefish”; (4) give Gersh’s husband “a call or stop by his office and let him know what you think of his wife’s behavior, advise him to get a leash on that hoe”; (5) contact businesses and organizations associated with Gersh; and (6) “keep putting pressure on these Jews.”
With respect to the First Amendment defense, the court says that Anglin is not being held liable solely for his association with his readers. The court says Gersh alleges that Anglin authorized, directed, or ratified the tortious conduct of his readers, and case law authorizes liability under this framework. The court says that Anglin’s later articles stoked the fires of harassment. The complaint also alleged that Anglin provided a forum where readers would trade ideas and information for carrying out the harassment.
This is a super interesting case that raises a wealth of First Amendment and intermediary liability questions. Although real lives are at play, it reads like a classic exam question. Because Gersh sought to hold Anglin liable for speech he authored, there’s no real Section 230 question. Some of the allegations, such as Anglin making available a space for discussion and exchange of ideas, raise Section 230 issues, but Gersh has a clear path to liability without offending core Section 230 principles.
The First Amendment questions of course are much greyer. I mentioned in a recent blog post the question of whether speech that falls outside of recognized categories is off-limits, and this case squarely addresses that question. Not surprisingly, given the facts, the judge punts. Ninth Circuit circuit precedent is not entirely favorable to Anglin’s position. It blessed a revenge porn/cyberstalking conviction in US v. Osinger. Eric also mentioned in passing that this case brings to mind the Ninth Circuit’s Nuremberg files case. There, the Ninth Circuit, by a narrow majority, looked at anti-abortion activists’ “wanted posters” under the true threat analysis, and found no First Amendment bar to liability.
The cases raises a lot of difficult issues about when speech rights should give way to an individual’s interest in well-being. A good way to look at it is whether Anglin would be held liable if he merely engaged in the speech himself. Even that is a tough question. I suspect the answer is yes. But the Supreme Court has never definitively ruled on when (in a private setting) the right to free speech ends and harassment begins.
Barring a different result from the district judge, this is headed to discovery. And it’s anyone’s guess what that will yield. Safe to say, given that the dispute played out over social media, that the lawsuit will yield a bounty of discovery disputes. One wonders whether the litigants have the resources to slog it out for the duration. An anti-SLAPP statute would have yielded a different result.
Eric’s Comments: We have seen over-expansive applications of anti-harassment laws to Internet conduct too frequently. In contrast, I think this complaint presents a straightforward application of anti-harassment laws. If those laws cover anything, they should easily apply to Anglin’s repeated and deliberate online attacks against Gersh.
Anglin seems to be arguing that the First Amendment permits a person to post a fake Craigslist online ad (back when they had a personals section), impersonating a victim, saying the victim has rape fantasies and providing a physical space address, then disclaim liability for any resulting solicitations or assaults of the victim. Section 230 should protect Craigslist/the online platform from liability for such attacks; but Section 230 and the First Amendment do not protect the perpetrator for the third party misbehavior that was the desired, intended, and entirely foreseeable result of the posts.
Case citation: Gersh v. Anglin, CV 17-50-M-DLC-JCL (D. Mt. May 3, 2018)
NB: Well known First Amendment lawyer Marc Randazza represents Anglin.