Gersh v. Anglin
353 F. Supp. 3d 958 (2018)
Rule of Law:
The First Amendment does not protect online speech that, though containing political rhetoric, primarily targets a private individual over a private matter, and an instigator may be held liable under state tort law for the tortious conduct of third parties if they knowingly and substantially assisted or encouraged that conduct.
Facts:
- Andrew Anglin publishes an alt-right website called the Daily Stormer.
- On December 16, 2016, Anglin published an article on his website calling for an "old fashioned Troll Storm" targeting Plaintiff Tanya Gersh.
- Anglin published Gersh's phone numbers, email addresses, and social media profiles, as well as those of her husband, twelve-year-old son, friends, and colleagues.
- Anglin instructed his readers to "Tell them you are sickened by their Jew agenda to attack and harm the mother of someone whom they disagree with."
- The Daily Stormer articles centered on Gersh's interactions with Sherry Spencer, mother of prominent neo-Nazi Richard Spencer, concerning a potential business property sale, portraying Gersh's behavior as extortion using crude ethnic stereotypes and Holocaust imagery.
- Anglin called for "confrontation" and "action" but also advised readers to avoid illegal activities such as "threats of violence, suggestions of violence or acts of violence."
- Gersh and her family received more than 700 disparaging and/or threatening messages via phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards, many containing ethnic slurs, misogynistic rants, Holocaust references, and threats of violence.
- Anglin oversaw a discussion board on his website where he interacted with readers who posted comments about their trolling tactics.
Procedural Posture:
- United States Magistrate Judge Jeremiah C. Lynch entered his Findings and Recommendation, recommending that Defendant Andrew Anglin's Motion to Dismiss be denied to the extent it sought dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
- Anglin filed objections to the Magistrate Judge's Findings and Recommendation, which were deemed timely filed.
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Issue:
Does the First Amendment protect online speech and coordinated harassment (a 'troll storm') that, while employing political themes and rhetoric, is plausibly alleged to be an attack on a private individual over a private matter, thereby shielding the originator from liability for the tortious acts of others?
Opinions:
Majority - Dana L. Christensen, Chief Judge
No, the First Amendment does not protect online speech and coordinated harassment that, though containing some political rhetoric, primarily targets an individual over a private matter, and the originator may be held liable for the tortious acts of others. The court adopted the Magistrate Judge's recommendation to deny Anglin's motion to dismiss, finding that Gersh made a plausible claim that Anglin's speech involved a matter of strictly private concern, not public concern, and that Anglin could be held liable for his followers' conduct. The court first addressed Anglin's First Amendment defense, noting that while there's no categorical exception for harassing or offensive speech, protections are weaker for matters of purely private significance. Applying the "public concern" test (content, form, and context), the court found a plausible claim that Anglin's speech was strictly private. Although the posts appeared on an alt-right "news" blog, the content was an attack on Gersh, her family, and colleagues over a perceived personal conflict, exploiting anti-Semitic prejudices to harass her rather than inform the public about a matter of political or social interest, distinguishing it from Snyder v. Phelps. The court also rejected the argument that Gersh was a public figure, finding her role in any alleged public controversy minor. Second, the court held that Anglin could be liable for third-party conduct under Montana's "substantial assistance" test, rejecting Anglin's reliance on NAACP v. Claiborne Hardware Co. Claiborne Hardware was distinguishable because it involved speech on a matter of public concern (racial discrimination) and the unlawful conduct advocated did not actually occur. Here, Anglin's speech was found not to be of public concern, and the harm alleged (harassment) was precisely what Anglin anticipated and requested. The court reasoned that Anglin's express summoning of a troll storm, publishing contact information, and interacting with readers about their tactics satisfied the knowledge and substantial assistance elements for liability for others' tortious conduct. Finally, the court affirmed the sufficiency of Gersh's claims for invasion of privacy (intrusion upon seclusion), intentional infliction of emotional distress (IIED), and violation of Montana's Anti-Intimidation Act. For invasion of privacy, Gersh plausibly alleged a "wrongful intrusion" into her private life, and Anglin could not claim she lacked a reasonable expectation of privacy or that he merely posted publicly available information when done to cause suffering. For IIED, it was reasonably foreseeable that Anglin's actions would cause serious emotional distress, especially given his encouragement and ratification of the harassment. For the Anti-Intimidation Act, Gersh's complaint adequately alleged interference with her legally protected rights to privacy and to freely practice her religion, despite Anglin's attempts to frame it narrowly.
Analysis:
This case significantly clarifies the limits of First Amendment protection for online speech, particularly in the context of coordinated harassment campaigns. It establishes that even if a speaker uses political or public-facing platforms, the First Amendment does not shield them from tort liability when their speech primarily targets a private individual over a private matter. The ruling reinforces that those who actively incite and direct "troll storms" can be held liable for the resulting tortious conduct of their followers, especially when the harm is foreseeable and intended, distinguishing such actions from protected speech concerning matters of genuine public debate. This decision provides a pathway for victims of online harassment to seek redress against instigators who direct their followers to commit torts, even if they explicitly tell followers to avoid illegal acts.
