Judge to decide if neo-Nazi "troll storm" is protected speech

Attorneys for a neo-Nazi website publisher and a Montana woman will ask a judge Tuesday to decide whether the white nationalist had a First Amendment right to unleash a "troll storm" of anti-Semitic messages and threats against the woman's family.

U.S. Magistrate Judge Jeremiah Lynch was scheduled to hear arguments in Missoula on whether to dismiss a lawsuit by Tanya Gersh, a real-estate agent from the mountain resort community of Whitefish, against The Daily Stormer publisher Andrew Anglin.

The judge had previously ruled against Anglin's argument to dismiss Gersh's claims of emotional distress, intimidation and invasion of privacy because Anglin is "not a citizen of any state" and has been living abroad for years.

But the judge wanted to hear from attorneys on both sides in the courtroom before he ruled on another key argument in Anglin's motion to dismiss — that the neo-Nazi publisher was engaged in political speech protected under the First Amendment.

Gersh sued Anglin last year after he published a post in 2016 calling for an "old fashioned troll storm" and posted the personal information of Gersh and others whom Anglin accused of "extorting" the mother of white nationalist Richard Spencer.

Gersh said she agreed to help Spencer's mother sell property she owns in Whitefish. Sherry Spencer accused Gersh of threatening and harassing her into agreeing to sell the property.

Gersh said in her lawsuit that her family received hundreds of harassing messages from Anglin's followers, including one that was just a recording of gun shots. Another message for her 12-year-old son told him to look inside an oven for a free video game console, a reference to a method that Nazis used to kill Jews during the Holocaust.

Anglin argues through his attorney that he was only inviting his readers to protest Gersh's actions. He also argues that he is not liable for his followers' actions and that the personal information he published was publicly available.

The messages Gersh received were "mean-spirited, nasty, brutish and uncalled for," but also political hyperbole and not a true threat, Anglin attorneys Marc Randazza and Jay Wolman wrote in a court document that lays out their argument.

"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," Randazza and Wolman wrote.

Gersh, who is being represented by the Southern Poverty Law Center, said in response that the First Amendment's free-speech protections do not include a coordinated attack through private communications meant to cause substantial emotional harm.

Anglin wasn't speaking on any broad public issues, Gersh attorneys David Dinielli and John Morrison wrote. Rather, he directed his followers to terrorize Gersh personally through private means of communication.

"Severe emotional distress was not only the foreseeable consequence of (Anglin's) troll storm but its very end, and (Anglin) cannot wash his hands of it," the attorneys wrote.