A lawsuit against the publisher of a neo-Nazi website who is being sued for imploring his readers to conduct a “troll storm” against a Whitefish woman is likely to continue after a federal magistrate judge issued a finding that the First Amendment did not necessarily protect Andrew Anglin, publisher of the Daily Stormer.
“(T)he Court rejects Anglin’s argument that the Complaint should be dismissed on First Amendment grounds, and finds that (Whitefish resident Tanya) Gersh has alleged sufficient facts to support a cognizable legal theory by which Anglin could be held liable for the conduct of his readers,” wrote Magistrate Judge Jeremiah Lynch.
Anglin was sued by Gersh after he posted her and her family's contact information in Whitefish in 2016, inviting his readers to start an “old fashioned troll storm.”
The posts started after Sherry Spencer, mother of white nationalist and part-time Whitefish resident Richard Spencer, accused Gersh of threatening and harassing her into selling her Whitefish property. Gersh said Sherry Spencer contacted her asking her to help sell the property.
After Anglin’s series of posts, Gersh and her family received hundreds of threatening phone calls and emails from Anglin’s readers, according to her lawsuit.
At a hearing last month, Anglin’s attorneys — who filed a motion to have the lawsuit tossed out — argued that their client was engaging in free speech when he made the posts, and in addition can’t be held responsible for the actions of his followers.
In his ruling Thursday Lynch recommended that Anglin’s dismissal motion be denied, saying that Gersh had met the standard to allow the case to proceed to trial to determine whether her claims should be upheld.
Lynch’s recommendation must still be reviewed and adopted by U.S. District Court Chief Judge Dana Christensen.
At last month’s hearing in Missoula, Anglin’s attorney Marc Randazza argued that Gersh should have a lower expectation of privacy, and should be considered a public figure because she involved herself in a “public controversy” regarding Sherry Spencer’s ownership of a Whitefish building. Anglin’s posts were merely him commenting on his views of that public concern, Randazza contended.
In his recommendation, Lynch noted that to the contrary, many of Anglin’s posts about Gersh appear to be unrelated to Sherry Spencer. The magistrate judge also wrote that Anglin and Gersh appear to contend factual differences in what led to the posts.
“The fact that those allegations are disputed by Anglin serves only to illustrate that his First Amendment defense, and the question of whether Gersh was a private or limited purpose public figure, should be addressed as necessary later in the litigation on a complete evidentiary record,” Lynch wrote.
Much of the discussion at the April hearing concerned a 1982 U.S. Supreme Court decision which allowed a person to be held liable for the unlawful conduct of others if that person “authorized, directed or ratified” the activity.
Anglin’s attorney disagreed that this is what his client did in writing posts encouraging his readers to harass Gersh and posting her contact information to assist them in doing so. But Lynch appeared to disagree.
“For example, the fact that Anglin published the Twitter handle of Gersh’s son and wrote that ‘(y)ou can hit him up, tell him what you think of his (expletive) mother’s vicious attack on the community of Whitefish’ can be construed in Gersh’s favor as evidence that Anglin directed his readers to do just that,” Lynch wrote in Thursday’s filing.
Gersh also contends that she and her family were a “captive audience” to the harassment and threats of Anglin’s followers, potentially allowing more restriction of speech than might otherwise be protected.
Anglin’s attorney countered in court filings and during the hearing that such protections don’t apply because unlike someone picketing outside a person’s home, Gersh willingly engaged with the harassment because she voluntarily checked her emails and answered her phone calls.
Lynch declined to offer a recommendation on whether the captive audience protection should apply to Gersh.