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Gersh v. Anglin

United States District Court, D. Montana, Missoula Division

November 14, 2018

TANYA GERSH, Plaintiff,
ANDREW ANGLIN, publisher of the Daily Stormer,, Defendant.



         United States Magistrate Judge Jeremiah C. Lynch entered his Findings and Recommendation in this case on May 3, 2018, recommending that Defendant Andrew Anglin's Motion to Dismiss be denied to the extent it seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 85 at 30.) Anglin filed his objections on May 13, 2018, and the Court deems his objections timely filed. (Doc. 91.) Consequently, Anglin is entitled to de novo review of those findings and recommendations to which he has specifically objected. 28 U.S.C. § 636(b)(1)- Absent objection, this Court reviews findings and recommendations for clear error. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Thomas v. Arn, 474 U.S. 140, 149 (1985). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (citations omitted).

         Anglin objects to the recommendation that his motion to dismiss be denied, contending: (1) the First Amendment protects the speech at issue; (2) Anglin cannot be held liable for others' speech, even if that speech is not protected; and (3) Plaintiff Tanya Gersh failed to state a legally cognizable claim under any one of the various legal theories raised in her Complaint.

         Reviewing de novo, the Court concludes that Judge Lynch correctly analyzed the sufficiency of Gersh's complaint. Accordingly, it adopts the Findings and Recommendation in full and denies Anglin's motion to dismiss except as to the constitutionality of the Anti-Intimidation Act, an issue that was not addressed in the Findings and Recommendation and accordingly is not reached in this Order.


         Defendant Andrew Anglin publishes an alt-right website, the Daily Stormer, which derives its name from Der Sturmer, an unofficial pro-Nazi propaganda tabloid. On December 16, 2016, following a string of lead-up articles, Anglin wrote and published on his website an article calling his readers to action: "Let's Hit Em Up[.] Are y'all ready for an old fashioned Troll Storm? Because AYO- it's that time, fam." (Doc. 1 at 2.) The so-called troll storm was targeted at Plaintiff Tanya Gersh, and Anglin published Gersh's phone numbers, email addresses, and social media profiles, as well as those of her husband, twelve-year-old son, friends, and colleagues. Anglin asked readers to "Tell them you are sickened by their Jew agenda to attack and harm the mother of someone whom they disagree with." (Doc. 1 at 20.)

         The Daily Stormer's articles centered on Gersh's interactions with Sherry Spencer, Whitefish resident and mother of prominent neo-Nazi Richard Spencer. At some point, Gersh, a realtor, discussed the potential sale of a business property with Sherry Spencer, who owned the building and was facing boycotts related to her son's notoriety. In the articles, Anglin described Gersh's behavior as extortion, and Anglin drew heavily on crude ethnic stereotypes, painting Gersh as acting in furtherance of a perceived Jewish agenda and using Holocaust imagery and rhetoric. He called for "confrontation" and "action," (Doc. 1 at 18 & 41), but he also told readers to avoid illegal activity, drawing a line between what Anglin believed to be constitutionally protected speech-e.g., "photoshop[ping] pictures of your face and that of your scamming spammer rat son onto Nazi propaganda posters from the 1930s," (Doc. 1 at 41)-and speech for which he and his followers might face liability-e.g., "threats of violence, suggestions of violence or acts of violence," (Doc. 1 at 43).

         The messages received by Gersh and her family, including her son, were filled with ethnic slurs and misogynistic rants. Many messages referenced the Holocaust, and some threatened violence. When Gersh filed her Complaint in the spring of 2017, she and her family had received more than 700 disparaging and/or threatening messages over phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards.


         Withholding judgment on the constitutionality of Montana's Anti-Intimidation Act, [2] Judge Lynch recommended denying Anglin's motion to dismiss on every other theory raised. Anglin's objections fall along three lines: (1) the First Amendment broadly protects Anglin's own speech; (2) Anglin cannot be held liable for others' speech consistent with the First Amendment; and (3) Gersh failed to state a legally cognizable claim under each of the three legal theories raised in her complaint: invasion of privacy, intentional infliction of emotional distress, or violation of Montana's Anti-Intimidation Act.

         I. First Amendment Protection

         Judge Lynch recommended rejecting Anglin's argument that the challenged speech is protected by the First Amendment and accordingly immune from a state tort suit. Anglin contends that his motion to dismiss should be granted because the speech giving rise to Gersh's claim enjoys First Amendment protection. He argues that: (1) the speech does not fall within an unprotected category; and (2) the speech involved both a matter of public concern-neo-Nazi Richard Spencer's relationship with the town of Whitefish, Montana-and a public figure-Gersh.

         The Court agrees that the speech does not fall into a de facto unprotected category. And in fact Gersh does not contend that Anglin's speech falls within one of the few "historic and traditional categories of expression long familiar to the bar" for which content-based restrictions on speech are clearly permitted. United States v. Alvarez, 567 U.S. 709, 717-18 (2012) (citations, alterations, and internal quotation marks omitted). Indeed, "there is no categorical exception to the First Amendment for harassing or offensive speech." United States v. Osinger, 753 F.3d 939, 953 (9th Cir. 2014).

         Further, the Court is unconvinced by Gersh's argument that, pursuant to Shoemaker v. Taylor, 730 F.3d 778, 787 (9th Cir. 2013), the Ninth Circuit generally demands a balancing approach to First Amendment issues. The Ninth Circuit's discussion in Shoemaker was limited by the Antiterrorism and Effective Death Penalty Act. The Court addressed only whether "the Supreme Court has ... clearly established that images morphed to depict children engaged in sexual activity are protected by the First Amendment" when the Supreme Court had in fact expressly reserved the question of whether morphed images fell within a clearly established category of unprotected speech, child pornography. Id. at 787. However, Shoemaker's inapplicability does not necessarily mean that Anglin is entitled to dismissal.

         "The Free Speech Clause of the First Amendment-'Congress shall make no law ... abridging the freedom of speech'-can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress." Snyder v. Phelps, 562 U.S. 443, 451 (2011).[3] That said, "[t]he protections afforded by the First Amendment... are not absolute, and [courts] have long recognized that the government may regulate certain categories of expression consistent with the Constitution." Virginia v. Black, 538 U.S. 343, 358 (2003).

         The First Amendment's protections are particularly strong when the speech at issue involves "matters of public concern." Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,472 U.S. 749, 758-59 (1985) (Powell, J., for the plurality) (quoting First Nat'lBank of Boston v. Belotti,435 U.S. 765, 776 (1978)). '"[N]ot all speech is of equal First Amendment importance,' however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous." Snyder, 562 U.S. at 452 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)). This is so because the regulation of "speech on matters of purely private concern" does not "threat[en] the free and ...

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