United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, CHIEF JUDGE
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).
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.
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.
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.)
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).
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.
judgment on the constitutionality of Montana's
Anti-Intimidation Act,  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.
First Amendment Protection
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.
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
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.
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). 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,
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 ...