Attorneys for the publisher of a neo-Nazi website and those representing a Montana woman on the receiving end of a “troll storm” of anti-Semitic messages and threats met in federal court in Missoula Tuesday to debate whether the incident was a case of protected free speech.
Andrew Anglin, the publisher of the Daily Stormer, was sued by Whitefish resident Tanya Gersh after he posted her and her family's contact information 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 posts started appearing on the Daily Stormer site, Gersh and her family received hundreds of threatening phone calls and emails from Anglin’s followers, her lawsuit said.
As part of a motion to have the lawsuit dismissed, Anglin’s attorneys have argued that their client was engaging in political speech protected by the First Amendment when he posted, and that he only asked his readers to protest Gersh’s actions. Both in court filings and in court on Tuesday, they said that Anglin should not be held liable for his reader’s actions, and that all of the information he posted about Gersh was publicly available.
Anglin did not attend Tuesday’s hearing, but Missoula attorney Mat Stevenson and Las Vegas lawyer Marc Randazza were there to represent him.
Randazza started his presentation by saying that while he does not agree with the views of his client, he believes Anglin has a First Amendment right to express them.
“Today I’m not here on behalf of the principle that I like what my client has to say,” Randazza said. “I abhor what he has to say.”
Much of the discussion Tuesday about whether Anglin’s writing was protected under the First Amendment circled back to a 1982 decision by the U.S. Supreme Court, which established an exemption under which someone could be held liable for the unlawful conduct of other people if that person “authorized, directed, or ratified” specific wrongful activity.
But the court’s decision didn’t expand on the meaning of “authorized, directed, or ratified," and U.S. Magistrate Judge Jeremiah Lynch on Tuesday asked attorneys on both sides for their opinions and arguments about whether it applied to Anglin’s actions.
Lynch said that at face value, he thought a person would need some sort of power relationship, such as boss-employee, to be able to have the power to authorize, direct or ratify the actions of another person.
Randazza agreed, adding that the call to action would also have to be for people to conduct “imminent lawless action.” Anglin, the attorney argued, had specifically told his readers not to engage in violence or threats. That Gersh received unwanted phone calls and emails wasn’t enough to hold Anglin liable, he said.
Even though Anglin continued to write stories telling readers to keep up their harassment of Gersh, Randazza told the judge he should draw a distinction between “authorized, directed or ratified” and “encouraging, cheered, or applauded.”
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“Just because somebody reacted negatively (to Anglin’s writings), I don’t think that creates any responsibility for him to stop,” Randazza said.
Anglin’s attorney also wanted Lynch, as he considered the free speech challenge to the case, to take the “Nazi-inspired speech” component out of the equation and look at the issue as though it involved any other activist group, such as one opposing fracking or specific corporations.
“I’d like to see my client’s activism defeated in the marketplace of ideas,” he said. “Whatever the rule you lay down for the Nazi here, you also lay down for the civil rights activist.”
Lynch also pushed one of Gersh’s attorneys, David Dinielli of the Southern Poverty Law Center, on why Anglin should be held responsible for harassing messages sent by his readers.
Dinielli told the judge that if allowed to take the matter to trial, they would be able to show that Anglin’s actions constituted the “direction” expressed by the previous U.S. Supreme Court decision.
“We are alleging that he directed them to take specific action and knew they would,” he said.
Gersh’s attorney also denied that his client became a public figure or that the original issue with Sherry Spencer was any sort of public matter. Spencer’s accusations against Gersh, and the start of Anglin’s posts the next day, were simply about a dispute of whether “undue pressure” was used during the sale of a piece of property, Dinielli said.
“Not anything that the public is interested in is a matter of public concern,” he said.
John Morrison, a Helena attorney also representing Gersh, said Anglin’s 30 different posts imploring that his readers “keep it up” in their harassment of Gersh, was evidence that he was directing it.
“What he did in effect is to launch an army, or a swarm of bees, at Ms. Gersh.”
Lynch said he will consider the matter and issue a recommendation on the free speech question.
The Associated Press contributed to this story.