On Tuesday a federal judge in Missoula heard arguments on whether a neo-Nazi website writer has the First Amendment right to unleash a “troll storm” of anti-Semitic and threatening messages against a Whitefish Jewish woman and her family.
U.S. Magistrate Judge Jeremiah Lynch has not yet ruled on a motion defendant Andrew Anglin argued Tuesday in a suit brought by Tanya Gersh. Gersh says Anglin, publisher of the Daily Stormer website, invaded her privacy, intentionally inflicted emotional distress and violated Montana’s Anti-Intimidation Act. Anglin is trying to get the case dismissed, saying he was engaged in political speech protected under the First Amendment.
To better understand what’s at issue in the lawsuit, I spoke with Jonathan Kotler, a professor at the University of Southern California Annenberg School for Communication and Journalism. Kotler specializes in media law and constitutional rights.
Nicky Ouellet: At its heart, this lawsuit is about freedom of speech and the First Amendment. How have the courts in the past interpreted the boundary of what's considered protected free speech?
Jonathan Kotler: Almost anything is protected, with a couple of limited exceptions. Speech that would harm national security is not protected. Obscene speech is not protected. Speech that would cause a direct threat and harm to an individual is not protected. But other than that pretty much everything goes.
NO: You mentioned that threatening speech is not protected. From my media law class in college, what I understood it to mean is I would make a threat by saying a time, a place and an action that I'm going to do against a person. Is that always how it's interpreted?
JK: Looking at some of the things that were said, not only about her, but her husband and her children, and the pictures and drawings. Those are pretty specific. They're not specific as to time, however, and I don't know that a court is going to be able to find they were specific enough in terms of when this was going to happen. I don't know that any individual one of these claims or threats is enough. But taken together, taken, you know, en masse there were so many of them. Scared me.
NO: In this particular lawsuit Tanya Gersh has argued that Andrew Anglin did have threatening and harassing speech against her, even though a lot of the messages that she received didn't come directly from Andrew Anglin. Is there any precedent where someone could be held accountable for the speech of others?
JK: Sure absolutely. If somebody came to me and said, ‘We're having marital difficulties. For a thousand dollars will you shoot my wife?’ And I say sure. He goes out and pulls the trigger. The person that solicited the illegal acts is just as liable for the harm as the person who actually commits the illegal acts. So if Anglin solicited the harassment of this woman, he would be just as responsible for the harassment as the people that did the harassment.
NO: Earlier you called that aiding and abetting with words.
JK: Yes.
NO: Have the courts ruled on cases similar to the one that Tanya Gersh has brought?
JK: We're starting to hear about cases involving Internet service providers about what liability they have. It really depends on whether or not the ISPs get involved in editing their platforms. They try and play it both ways. ‘We're an originator of information. No, we're not. We're just a neutral platform.’ If this guy takes an active role in his platform, and I understand that he does, he has editorials, he has posted things, then he's more than just a pass through. He’s more than just a conduit and he could have responsibility for some of the things that are said, especially the ones that he encourage.
NO: In your short review of this particular case is there anything that makes it stand out from those other similar cases that you just mentioned?
JK: Just the level of vitriol. These are an army of hundreds. And you've kind of got the general of the army say ‘charge!’ and his minions go charging off and he’s saying, ‘Hey, not my fault.’ The other thing that's kind of interesting is that the jurisdictional questions in this case are interesting because of where the parties are from. And you have the whole issue of whether or not the state statute, Montana's [Anti-Intimidation] law, would fall in the face of the First Amendment, if the First Amendment is even applicable. I don't know that it is.
NO: Anglin wanted the case dismissed because he says it fails to state a claim. Can you explain what that means and what you expect would happen next?
JK: This is setting the case up to go to trial. Defendants typically will try and get rid of a case. I think this is the case that, for better or for worse, it’s going to go to trial because I think there’s some real triable issues of fact and law here that I think ultimately have to be heard by a court.
