The founder of a popular neo-Nazi website who was sued after he called on his readers and followers to “troll storm” a Jewish Realtor from Montana is arguing that his actions are protected by free speech.
Andrew Anglin, founder of the Daily Stormer, has asked a federal court in Montana to dismiss a lawsuit that Tanya Gersh filed against him last spring. In court records filed last week, Anglin’s attorneys said that the First Amendment “is blind to viewpoint” and that the Constitution protects Anglin’s right to express his views about Gersh, “no matter how many people find those views intolerable.”
“If a local business were polluting the environment, any editor could rally his readers to write to that business in protest,” his legal team, led by First Amendment lawyer Marc Randazza, wrote in court briefs asking for the dismissal of the lawsuit. “If a local business were discriminating against black customers, the NAACP can exhort its members to send correspondence to it. And, conversely, the KKK can ask its members to send letters of protest to an establishment that treats all races equally.”
Gersh, of Whitefish, Montana, sued Anglin in April in the U.S. District Court for the District of Montana. The complaint details many of the more than 700 anti-Semitic and hateful messages, including death threats, to Gersh, her family, friends and colleagues.
They also sent threatening messages to her family. One photoshopped an image of her young son to make it appear as if he was being “crushed by Nazi trucks,” and sent the image to him.
The deluge of messages began after Gersh, who was involved with a local organization called “Love Lives Here,” spoke with Sherry Spencer, the mother of white nationalist and alt-right leader Richard Spencer.
Sherry Spencer, who owns a mixed-use building in Whitefish, wrote in a Medium article published in mid-December that Gersh had urged her to sell her property and warned her that protesters would show up outside her building if she didn’t do so. She also said that Gersh laid out “conditions,” including one that calls for her to publicly denounce her son’s views and to make a donation to a human rights organization.
Gersh, however, disputes Spencer’s account of the phone call. She said she was merely trying to help the Spencers, who don’t share their son’s extreme beliefs, when she suggested a plan to sell the property that had since become a possible target of protesters. The complaint also said that Spencer asked Gersh what to do and asked if she’d be willing to be her Realtor.
The Daily Stormer began its “troll storm” campaign against Gersh on the same day the Medium article was published.
“There are only 6,000 Jews in the entire state of Montana, yet they’re 100% of the people trying to silence Richard Spencer by harassing his mother. So Then – Let’s Hit Em Up. Are ya’ll ready for an old fashioned Troll Storm?” Anglin wrote.
Anglin’s attorneys argued that his articles do not constitute a “true threat” of violence against Gersh. Although there have been death threats, they said those did not come directly from Anglin, but rather, from third parties. The attorneys added that Anglin included disclaimers urging his readers to avoid threats of violence.
“Political hyperbole is not a threat. . . . The third parties’ statements are generally recognized anti-Semitic tropes, without actual harm reasonably construed,” the attorneys wrote. “And, even Nazi expression, no matter the psychic harm on Jewish residents, is nonetheless protected speech.”
The attorneys further argued that although the speech in question is unpopular, banning it would create a dangerous precedent for the First Amendments rights of advocacy organizations.
“The messages were allegedly received from a highly-disfavored group – neo-Nazis. And this gives some melody to the siren’s song of censorship – after all, who cares about Nazis?” the attorneys wrote. “But that is not the test under our Constitution. If we were to reject speech because it comes from an unorthodox group, we do violence to the very underpinnings of our notions of liberty. Nazis are ‘unorthodox’ in America. Yet the rule of law must govern.”
Gersh’s lawsuit, which is seeking compensatory and punitive damages, alleged invasion of privacy, intentional infliction of emotional distress and violation of Montana’s anti-intimidation act. Gersh is represented by the Southern Poverty Law Center.
The U.S. Supreme Court has repeatedly ruled that hate speech, no matter how bigoted or offensive, is free speech.
The high court did so in 1969, when it found that a state law banning public speech that advocates for illegal activities violated the constitutional rights of a Ku Klux Klan leader. It did so again in 1992, when the justices found that a city ordinance prohibiting the display of symbols that arouse anger toward someone based on race, religion and other factors is unconstitutional. And again in 2011, when the court ruled in favor of church members who picketed and carried signs with homophobic slurs at a soldier’s funeral.
In Montana, though, the state supreme court had previously held “that free speech does not include the right to cause substantial emotional distress by harassment or intimidation.”
Gersh said the consequences of the campaign against her extend beyond the mere shock of receiving hateful messages.
“Overnight, my life was stolen from me,” she said in an earlier interview with The Washington Post.
She said she was unable to do her job because the threats against her put the properties of her potential clients at risk.
“Hating people is one thing,” she said. “This is a form of terrorism.”
According to the complaint, Gersh has experienced panic attacks. Her physician had prescribed antidepressants, Valium and acupuncture. She also began trauma therapy twice a week.
Gersh “goes to bed in tears nearly every night, wakes up crying nearly every morning, startles easily, feels anxiety and discomfort in crowded places, has had trouble leaving her home, and fears answering her phone,” the complaint said.
Last summer, Anglin’s site was evicted from its home on the Internet after a violent white nationalist rally drew fresh attention to hate speech in the United States. The web hosting company GoDaddy announced in August that it will no longer host the site, after Anglin disparaged a protester who was killed in the white nationalist rally in Charlottesville.
Anglin characterized Heather Heyer as a “drain on society” and insulted her appearance. Heyer, 32, was killed after a car allegedly driven by a Nazi sympathizer plowed into a crowd of counterprotesters.
(c) 2017, The Washington Post · Kristine Phillips