Legal Experts Weigh in on ‘Troll Storm’ Lawsuit

Whitefish woman’s lawsuit alleging severe emotional distress could raise unique legal questions

By Tristan Scott
Signs on a local business promoting diversity in downtown Whitefish on Dec. 28, 2016. Beacon File Photo

On Dec. 16, 2016, Whitefish realtor Tanya Gersh and her family became the unsuspecting targets of a neo-Nazi “troll storm” as an army of anonymous Internet users unleashed a torrent of intimidating threats.

The family members watched in horror as their email inboxes, voicemail service and social media feeds were inundated with more than 700 threatening and offensive anti-Semitic comments.

The bulk of the messages were sent from email addresses bearing user names like [email protected] and youf***[email protected], and arrived replete with threats of death, violence and slurs against the Gersh family’s Jewish faith. The string of posts and messages professed to be retaliatory, accusing Gersh and other members of the local Jewish community of engaging in an “extortion racket” against Sherry Spencer, the mother of white nationalist Richard Spencer and owner of a mixed-use office building in Whitefish, though Gersh adamantly denies the allegations.

On April 18, the Southern Poverty Law Center and its Montana co-counsel, John Morrison, filed suit in federal court against the ringleader of the neo-Nazi website, alleging that he orchestrated a harassment campaign to “relentlessly terrorize” Gersh and her family.

The 63-page lawsuit describes in painstaking detail the series of events that opened the floodgate of harassing messages and litany of threats that sprung forth from unidentified individuals with the click of a mouse.

A rare exception to the thread of anonymity is the man who incited the “tsunami of threats” on his white nationalist website, the “Daily Stormer,” and whose byline appears at the top of a series of about 30 articles encouraging readers to “take action” against the Gershes and “tell them you are sickened by their Jew agenda.”

That man is Andrew Anglin, the lone defendant in the federal lawsuit seeking compensatory and punitive damages on the Gersh family’s behalf, due in part to the intentional infliction of emotional distress caused by Anglin.

The lawsuit contends that Anglin coordinated the campaign of harassment by posting contact information for Tanya Gersh, her husband and the couple’s 12-year-old son, calling on his readers to drum up an “old fashioned Troll storm.”

“And hey — if you’re in the area, maybe you should stop by and tell her in person what you think of her actions,” Anglin’s initial post reads.

The lawsuit before U.S. District Judge Dana Christensen alleges invasion of privacy, the infliction of intentional emotional distress and violations of the Montana Anti-Intimidation Act, and attorneys say the incredible volume of abusive electronic messages demonstrates that Anglin “sought to maximize the troll storm’s terrorizing effect” on the Gersh family.

According to legal experts, the SPLC has won court judgments against numerous major white supremacist organizations and individuals who have participated in violent acts. What makes the case against Anglin unique, however, is that the legal strategy has been adapted for a digital context, and stands out as one of the first cases to go after someone who coordinated a campaign of online harassment.

“Anglin is the ringleader,” said Morrison, a Helena attorney serving as co-counsel in the case. “These guys are all Nazi thugs, but Anglin is the ringleader, and the thugs that sent the messages detailed in the complaint in most cases do so anonymously. They used to hide behind white hoods and now they hide behind Internet screens, but their actions are no less dangerous.”

Morrison said the posts and messages were expressed as personal threats and attacks rather than as part of a public debate about an issue, which could raise First Amendment issues about protected speech. Instead, Morrison said a forum like the Daily Stormer should be dismantled.

Morrison also noted that the Daily Stormer is not merely a “gathering place for creepy little cowards who sit in the basement,” but also for “evil perpetrators who actually harm people,” as in the case of Daily Stormer reader Dylann Roof, the white supremacist who shot and killed nine African Americans at a church in Charleston, South Carolina.

“The Gershes’ emotional distress stems not just from being exposed to waves of this kind of abuse, but also from knowing that they may not be safe and their children may not be safe,” Morrison said.

“Our purpose first and foremost is to put an end to this,” he added. “This is unacceptable behavior and we intend to put an end to this. Secondarily, we want to compensate the Gershes for their pain, and we want to not only punish the wrongful conduct of Andrew Anglin but also send out a message that deters others from doing this. We think that going after Anglin is going after the bull’s eye.”

According to Steve Freeman, legal affairs director for the Anti-Defamation League, which fights bigotry with a focus on anti-Semitism, the case doesn’t necessarily enter uncharted legal territory simply because the threats occurred in a digital context.

“This case may be somewhat novel in that it may be the first to raise this kind of a deluge of electronic abuse and attacks that are coordinated on the Internet, and so [attorneys] may be asking the courts to recognize some old principles but in a new context,” Freeman said.

Unlike some First Amendment cases in which the U.S. Supreme Court has ruled that defendants’ speech was protected — such as the case of a group of Westboro Baptist Church picketers who demonstrated outside of the military funeral of Matthew Snyder, the son of a gay man — the Daily Stormer’s troll storm directly targeted the Gersh family.

“In my view, it is pretty clear that the First Amendment does not protect this kind of speech,” Freeman said. “These are communications directly fired at an intended victim that are designed to humiliate and embarrass and frighten, and that is not protected First Amendment speech.”

But according to Anthony Johnstone, a University of Montana School of Law professor who teaches federal and state constitutional law, problems could arise for the plaintiffs’ attorneys on several First Amendment issues, including over whether Anglin intended the troll storm as a true threat and whether he is protected under the Communications Decency Act of 1996.

“There are definitely some open First Amendment issues in the case,” Johnstone said.

Still, Freeman said the sheer volume of the messages directed at the Gersh family could amount to a threat collectively.

“If they can show that what Anglin did was extreme and outrageous, and that he knew the consequences, and that his actions resulted in actual harm and suffering, and the lawyers can link the two and get it before a jury, I would never sell SPLC short in a case like this,” Freeman added. “They have a very successful history holding these extremist groups responsible.”