(Courthouse News Service) A federal magistrate in Missoula on Thursday refused to dismiss a civil rights case a Jewish woman filed against a neo-Nazi publisher who told his followers to “hit up” her family.
Tanya Gersh sued Andrew Anglin in April 2017 for invasion of privacy, intentional infliction of emotional distress and violations of the Anti-Intimidation Act. Anglin is the publisher of the neo-Nazi website The Daily Stormer.
Gersh says Anglin directed his neo-Nazi followers to harass her and her family — to “hit ‘em up” with an “old fashioned troll storm” — after a real estate deal between Gersh and Sherry Spencer, mother of white nationalist Richard Spencer, soured.
Gersh seeks punitive damages. She is represented by attorneys with the Southern Poverty Law Center.
U.S. Magistrate Judge Jeremiah Lynch on Thursday recommended denial of Anglin’s motion to dismiss. Lynch hear oral arguments in April.
A headline from the Daily Stormer website in December 2017 stated: “Jews targeting Richard Spencer’s mother for harassment and extortion. Take action!”
Such posts continued for months, resulting in more than 700 harassing phone calls, emails and texts to Gersh, she says.
Anglin called on his followers to tell Gersh and her family “you are sickened with their Jewish agenda.”
In his motion to dismiss, Anglin and his attorney Marc Randazza of Las Vegas claim that Anglin’s speech was protected by the First Amendment. Anglin also says that even if his speech and that of his online followers is not protected, he cannot be sued for the actions or civil torts of his followers.
Anglin also challenged the constitutionality of Montana’s Anti-Intimidation Act.
Although Lynch recommended denial of Anglin’s motion to dismiss, U.S. District Judge Dana Christensen is the presiding judge and will determine whether the case proceeds.
Gersh’s attorney John Morrison called Lynch’s recommendations “well-organized, well-reasoned and well-supported.”
“The law does not allow thugs to assault or terrorize individuals and their families in their homes or on their personal channels of private communication,” Morrison said. “And it does not allow thugs to organize others to do those things.
“Judge Christensen will make the final decision, but we think Judge Lynch’s recommendations are very solid and we look forward to moving this case forward and preparing to present it to a Montana jury.”
Randazza claimed in oral arguments that Gersh became a public figure when she was drawn into the public light through her contact with Sherry Spencer. As a public figure, speech such as Anglin’s and his followers’ should be protected, Randazza said.
Lynch didn’t buy it. He said a person “who is dragged unwilling” is not made into a limited-purpose public figure, who would have to prove actual malice from the defendants. Gersh’s complaint alleges that it was Sherry Spencer who contacted Gersh, a Realtor, about a possible deal to sell her property in Whitefish.
Gersh also invokes the captive audience doctrine in her complaint. The captive audience doctrine recognizes that the government may restrict speech that is otherwise protected by the First Amendment if it invades a listener’s substantial right to privacy.
When someone in a captive audience cannot avoid the objectionable speech, the First Amendment allows the government to prohibit offensive speech as intrusive, Lynch wrote in his recommendation.
Gersh maintains that she and her family were a captive audience and were bombarded with hundreds of threatening emails, calls and letters from The Daily Stormer followers. Randazza argued that the Gershes were not a captive audience, since electronic media — and the threats they may contain — are mainly directed to a third-party “cloud” that the audience must “affirmatively reach out to acquire.”
Randazza did not respond to a request for comment.