The man who orchestrated a neo-Nazi troll storm that unleashed a torrent of anti-Semitic threats against a Jewish family in Whitefish has asked a federal judge to dismiss a federal lawsuit against him, arguing that his calls for action constituted legally protected political speech under the First Amendment.
The legal team representing Andrew Anglin, publisher of the white nationalist website the Daily Stormer, filed the sprawling motion to dismiss on Nov. 30 in U.S. District Court in Missoula. In it, the attorneys argue that Anglin’s comments cannot be stripped of constitutional protections solely because they are distasteful and emotionally hurtful.
“Even Nazi expression, no matter the psychic harm on Jewish residents, is nonetheless protected speech,” according to the defense motion.
The document offers the first glimpse into the First Amendment defense that Anglin’s team is mounting after dodging the months-long efforts by plaintiffs’ attorneys to track down the elusive defendant and serve him with the lawsuit.
The efforts to locate Anglin began April 18 when the Southern Poverty Law Center and its Montana co-counsel, John Morrison, filed suit in federal court against him, alleging that Anglin touched off a harassment campaign to “relentlessly terrorize” Whitefish real estate agent Tanya Gersh and her family.
The posts and messages were expressed as personal threats and attacks rather than as part of a public debate about an issue, according to Morrison, who acknowledged such a discourse could raise First Amendment issues. In Anglin’s case, Morrison said the threats were intended to cause harm, and a forum like the Daily Stormer should be dismantled.
But despite repeated efforts to contact Anglin and his lead attorney, the Las Vegas First Amendment lawyer Marc Randazza, Anglin remained off the radar, and only after attorneys for the Gersh family ran a legal notice for six weeks in a newspaper in Worthington, Ohio, where Anglin is last known to have resided, was service of the lawsuit certified.
All the while, Anglin authored posts about the case to his website while Randazza was quoted about it in national news outlets, despite not returning phone calls and emails from the plaintiffs’ attorneys.
“It is odd. I have never seen a situation before where defense counsel appears in the media but refuses to accept service or make a client available for service of process in a civil case,” Morrison, an attorney from Helena, said. “This is a first in that respect.”
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 Anglin, 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.”
The federal lawsuit seeks compensatory and punitive damages on the Gersh family’s behalf, due in part to the intentional infliction of emotional distress caused by Anglin.
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 rejects that narrative.
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.
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.”
Randazza, who has significant experience in Internet tort law, especially concerning revenge pornography and the adult entertainment industry, did not respond to requests to comment from the Beacon.
In an interview with ABC’s Nightline, Randazza said Anglin’s online comments and his calls for action, while “distasteful,” are considered protected speech under the First Amendment.
“It is distasteful but the First Amendment tolerates distasteful content. He has a right to express himself politically, to express himself socially and to call people to action,” Randazza told ABC.
Anglin raised more than $150,000 on his website to hire the legal team led by Randazza.
In the brief supporting the motion to dismiss, Randazza wrote that while neo-Nazis are a highly disfavored group, that is not the test under the First Amendment.
“If we are 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,” he wrote.
Morrison and attorneys for the SPLC say they are confident in the merits of the case, but anticipate Anglin’s legal team mounting a “vigorous defense.”
“This is not free speech,” Morrison said. “This is not protected by the First Amendment. This is not the expression of political opinion. The purpose of this is to damage these people. The purpose of this is to cause them fear and emotional harm, and that’s illegal.”
A preliminary pretrial conference in the case is set for December in U.S. District Court in Missoula.