Gersh v. Anglin
353 F. Supp. 3d 958
D. Mont.2018Background
- Andrew Anglin, publisher of the alt‑right site Daily Stormer, posted a December 16, 2016 article calling for a “troll storm” targeting plaintiff Tanya Gersh and published contact info for Gersh, her family, friends, and colleagues.
- Anglin’s posts included anti‑Semitic rhetoric, urged readers to confront Gersh, and provided examples of messages to send while advising readers to avoid explicitly illegal acts.
- Gersh and her family received hundreds of harassing or threatening communications across phone, voicemail, text, email, social media, and mail.
- Gersh sued under Montana law for intrusion upon seclusion (invasion of privacy), intentional infliction of emotional distress (IIED), and violation of Montana’s Anti‑Intimidation Act.
- Magistrate Judge Lynch recommended denying Anglin’s Rule 12(b)(6) motion to dismiss; Anglin objected. The district court reviewed de novo and adopted the Findings and Recommendation, denying dismissal except as to an unaddressed facial challenge to the Anti‑Intimidation Act’s constitutionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment protection — whether Anglin's speech is protected | Speech targeted Gersh privately and is therefore not a matter of public concern; constitutional defenses do not preclude tort claims | Speech was on a public‑interest website about public figures and issues, so First Amendment bars liability | Court held it is premature to treat speech as protected; plausible that speech concerned private matters and survives 12(b)(6) review |
| Public figure / public concern — whether Gersh is a public figure or topic was public concern | Gersh did not inject herself into public controversy; her alleged role in a property matter was minor | Gersh became a limited‑purpose public figure through involvement with Sherry Spencer and related community disputes | Court found pleadings plausibly show Gersh was not a public figure and connection between troll storm and public issues is insufficient at pleading stage |
| Liability for third‑party conduct — whether Anglin can be liable for readers' harassment (substantial assistance / incitement) | Anglin authorized, encouraged, and facilitated a coordinated campaign; his posts and forum oversight make liability plausible | First Amendment (Claiborne) protects advocacy; Anglin cannot be held for third‑party speech absent incitement | Court rejected Claiborne as controlling; under Montana’s substantial‑assistance test and Claiborne’s principle that liability requires direction/authorization, Gersh adequately pleaded facts to hold Anglin potentially liable for readers’ torts |
| Adequacy of state‑law claims — intrusion, IIED, Anti‑Intimidation Act | Complaints allege repeated, pervasive harassment, foreseeable emotional harm, interference with privacy and free exercise of religion | Anglin says claims fail as a matter of law and are precluded by the First Amendment or lack necessary elements | Court held Gersh sufficiently pleaded intrusion upon seclusion, IIED, and a statutory claim under the Anti‑Intimidation Act (constitutionality of the statute not resolved) |
Key Cases Cited
- United States v. Alvarez, 567 U.S. 709 (First Amendment does not admit broad categorical exceptions beyond established historic categories)
- Snyder v. Phelps, 562 U.S. 443 (distinguishes matters of public concern from private matters in tort suits implicating speech)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (speech may be insulated absent authorization, direction, or ratification of unlawful acts)
- Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (First Amendment protection stronger for matters of public concern)
- Connick v. Myers, 461 U.S. 138 (test for whether speech addresses public or private concern)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (distinction between general and limited‑purpose public figures)
- City of San Diego v. Roe, 543 U.S. 77 (speech on purely private matters may receive less protection)
- United States v. Mendelsohn, 896 F.2d 1183 (advocacy that is integral to tortious activity is not protected)
- United States v. Osinger, 753 F.3d 939 (harassing speech not categorically exempt from tort liability)